Undue influence is a major theme in trust and estate litigation. But when does advocacy for a change in an estate plan cross the line and become undue?

There is no bright line test for undue influence under California law. Almost always, the proof is indirect. While there is no video of Sister pressuring Mom to disinherit Brother on the drive over to the estate planning lawyer’s office, there may be compelling circumstantial evidence that Sister did just that. All of this leaves much to the discretion and life experience of the judge who decides the dispute.

In 2013, the Legislature enacted section 15610.70 of the Welfare and Institutions Code, which defines “undue influence” as “excessive persuasion that causes another person to act or refrain from acting by overcoming that person’s free will and results in inequity.” The statute, effective January 1, 2014, goes on to provide a non-exclusive checklist of factors that judges must consider, which may be paraphrased as follows:

1. Vulnerability of the alleged victim. This includes evidence of mental incapacity or impairment, illness, disability, injury, age, education, isolation, or dependency, as well as whether the alleged perpetrator knew of the vulnerability.
2. Apparent authority of the alleged perpetrator. A person who is a fiduciary, family member, care provider, legal professional, spiritual adviser is more likely to hold sway over the alleged victim.
3. Actions or tactics used by the alleged perpetrator. Has the supposed wrongdoer exploited his or her control over the victim, used affection, intimidation, or coercion, or proceeded with haste or secrecy.
4. Equity of the result. What are the economic consequences to the alleged victim, the divergence from the prior intent or course of conduct or dealing, and the circumstances that may justify the challenged action?

So, undue influence is, in a general sense, unfair arm twisting.

The person alleging undue influence generally bears the burden of proof in California, with two notable exceptions.

First, if the alleged perpetrator was specially positioned so as to wield influence behind closed doors (such as a paid in home caregiver) and was not a close family member, there may be a presumption of undue influence. The law that creates this presumption, beginning at Probate Code section 21360, will be discussed in future posts.

Second, under California common law, family members and anyone else may be presumed to have exerted undue influence if (1) they had a relationship of trust and confidence with the alleged victim, (2) they actively procured the challenged act (e.g., a trust amendment that favored them), and (3) it would give them an undue profit.

Of course, family members often advocate for themselves. Son may tell Mom that since he is the child who stayed behind on the Sutter County farm to grow the rice and care for her, he should inherit the farm instead of Daughters who have office jobs in Sacramento and don’t know when to flood the fields.

At some point as Mom ages, however, the lobbying may become so relentless and oppressive that a judge would deem Son’s persuasion excessive and invalidate the will or trust provision that gave Son what he so badly wanted, the family rice ground for himself. Whether that point was crossed will be the central point in the litigation.

With the new statute, the Legislature has provided a helpful checklist to follow but the judge who holds the clip board has a lot of discretion in how he or she marks the boxes.