If you were to review every Trust or Will lawsuit filed in California, I would bet that 99% of those lawsuits plead a claims for lack of capacity to overturn a Trust or Will. Lack of capacity is, by far, the most pleaded claim in Trust and Will lawsuits. More accurately, it is the most over-pleaded claim in Trust and Will lawsuits.
Undue influence on the other hand, while pleaded almost as often as lack of capacity, is little understood and rarely used to its full potential as a basis to over turn a Trust or Will.
Lack of capacity and undue influence are very different claims. While they both have the potential to overturn a Trust or Will, the elements and evidence needed to prove each claim is vastly different. For lack of capacity, the focus is entirely on the cognitive mental functioning of the Trust or Will creator. To prove a lack of capacity, you must first show a mental defect exists (such as dementia, Alzheimer’s disease, or some similar mental defect) and then show a connection between that defect and the ability to understand and appreciate one of the elements of capacity. For Will creation, the elements for capacity require a person to know (1) that they are creating a Will, (2) generally what their property is, and (3) the relationship of the people or entities who will benefit from the Will.
In other words, Will capacity is all about the decedent. But because the case is brought after death, the only way to prove lack of capacity is through the decedent’s medical records. Sometimes those records are thorough and helpful, other times, they are not.
Undue influence, however, only focuses of whether the Trust or Will creator was susceptible to influence. The decedent need not lack capacity all together, in fact they may still have capacity. As long as there is a weakened mental state, the susceptibility element can be met.
After that, the rest of the elements for undue influence focus on the actions of the wrongdoer. For example, what was their apparent authority over the decedent, what actions and tactics were used to create a new Will or Trust, and was the end result fair and equitable based on past plans crated by the decedent. Notice how none of those elements revolves around the decedent’s mental state?
I like to call undue influence “capacity light” because it focuses on the mental condition for only one element. And even that one element only looks to susceptibility, not to outright lack of capacity. As a result, undue influence can be an easier claim to pursue when evidence required to prove lack of capacity cannot be found.