Ask most lawyers in California how hard it is to prove up an undue influence claim in a Trust Contest or Will Contest. The answer is likely to be that it is difficult to prove undue influence in these types of cases. But that’s most likely due to these lawyers thinking about proving an undue influence case by way of “direct” evidence. And it’s a rare case where there is “direct” evidence to prove up an undue influence case. And that’s why most lawyers believe it is fairly difficult to prove up these types of cases.
But what if we looked at all the circumstances (and the inferences that come from these circumstances) that surround the creation of the Trust or Will? What if each fact, taken by itself, meant little, but when taken all together established that more likely than not undue influenced was exercised over a person to create a California Trust or Will? Well, then, I would say you have a good case to invalidate the Trust or Will due to the unlawful exercise of undue influence.
Before we try to prove undue influence took place, we need to understand what undue influence is. Okay, so what is it?
The California Supreme Court has described undue influence in the context of ‘Person A’ making a Trust or Will where pressure is brought about by ‘Person B’ to bear directly on the testamentary act, sufficient to overcome ‘Person A’s’ free will, amounting in effect to coercion destroying ‘Person A’s’ free will. (Rice v. Clark (2002) 28 Cal.4th 89, 96; Hagen v. Hickenbottom (1995) 41 Cal.App.4th 168, 182.
And the California State Legislature currently defines undue influence as excessive persuasion that causes a person to act or refrain from acting by overcoming that person’s free will, which results in unfairness. (Welf. & Inst. Code § 15610.70)
So, undue influence occurs when a bad acting person persuades and overcomes an innocent person’s free will causing that innocent person to create a Trust or Will.
Okay, now that we understand what undue influence is, how do you we prove it? And I’ve got some good news. Under California law, undue influence may be proven by circumstantial evidence. (Lintz v. Lintz (2014) 222 Cal.App.4th 1346); Estate of McDevitt (1892) 95 Cal. 17, 33; I (1934) 140 Cal.App. 367, 371).
Circumstantial evidence includes:
- The vulnerability of the victim who created the Trust or Will, which may include:
- Impaired Cognitive Function;
- Emotional Distress;
- Dependency on the bad acting person; and
- The bad acting person knowing of the victim’s dependency.
- The bad acting person’s apparent authority, which may include:
- Bad acting person’s status as a Trustee, named Executor, or named Agent on the Victim’s Durable Powers of Attorney;
- Bad acting person is a family member of the victim; and
- Bad acting person acting as a caregiver of the victim.
- The actions or tactics used by the bad acting person, which may include:
- Bad acting person controlling the victim’s medication or transportation;
- Bad acting person not allowing the victim to see other family members or friends;
- Bad acting person keeping the victim from access to information; and
- Bad acting person keeping the victim from sleeping.
- The unfairness of the new Trust or Will, which may include:
- A change from the victim’s previous Trust or Will; and
- The relationship between the value conveyed to the value received.
Of course each case will have its own set of facts that support a claim for undue influence. But the good news is that California law makes it easier to overcome the hurdles to proving up a case for undue influence in the creation of invalid Trusts and Wills by the use of circumstantial evidence.