California trust and estate disputes often feature claims by one sibling that another gained a larger share by unduly influencing a parent. When there are factors suggesting undue influence, who should bear the burden of proof? The disfavored sibling or the favored one?

Florida courts have decided that dutiful children, and spouses, should not be stuck with proving the absence of undue influence. Should California take the same approach?

Florida Courts Favor Children and Spouses

In California, as in Florida and other states, a presumption of undue influence arises when a will or trust contestant shows that the alleged wrongdoer (1) had a confidential relationship with the elder, (2) actively participated in procuring a testamentary instrument’s preparation or execution, and (3) unduly benefited by the instrument.

When a contestant proves these elements, there is essentially a presumption of guilt. The alleged wrongdoer must try to prove that the elder acted voluntarily – otherwise the benefit that he or she was to receive under the will, trust or other document will be taken away.

Adult children who loyally assist their parents may find themselves in trouble. Florida attorney and blogger Juan C. Antúnez explains the concern as follows:

Every middle-aged child favored by mom or dad for the sacrifices made to personally care for an ailing parent gets caught up in this three-part test. There’s no escaping it. Consider this typical scenario: did mom “confide” in the daughter whose home she was living in, of course (strike 1); if mom’s too old or frail to drive, then was daughter “active in procuring or securing the preparation or execution of the devise,” of course, who else was going to drive mom to lawyer’s office (strike 2); and finally, if mom had the audacity to actually demonstrate her gratitude for daughter’s sacrifice by favoring her in her will, then presto: daughter’s now a “substantial beneficiary” of mom’s will (strike 3).

Antúnez observes that, to protect “dutiful children” from undue influence presumptions, “Florida’s appellate courts are slowly modifying the hard edges of our common law involving undue influence claims against adult children caring for elderly parents.”

For example, in Estate of Kester v. Rocco, 117 So.3d 1196 (2013), a Florida appellate court considered Glenna Kester’s interactions with her mother, Barbara Kester. While Barbara named all five of her children as equal beneficiaries in her will, she listed Glenna on two accounts as a joint account holder or pay on death beneficiary. Two disfavored siblings claimed that Glenna had unduly influenced Barbara with respect to the accounts. The Florida trial court agreed.

But the Court of Appeal ruled otherwise. “Evidence merely that a parent and an adult child had a close relationship and that the younger person often assisted the parent with tasks is not enough to show undue influence.” If the parent-child interactions “are consistent with a ‘dutiful’ adult child towards an aging parent, there is no presumption of undue influence.” If an adult child cannot talk to a parent without consequences “then we have finally demolished the family ties of love and natural affection.”

Florida courts also have declined to presume undue influence in will contests against surviving spouses. As the Court of Appeal stated in Tarsagian v. Watt, 402 So.2d 471 (1981), one “would naturally expect to find a spouse to be present at the execution of the will, present when the testator expresses a desire to make a will, knowledgeable about the contents of the will prior to its execution, involved in its safekeeping, and perhaps even involved in the recommendation of an attorney-preparer and consultation with an attorney-preparer.”

Rightly or Wrongly, California Law Is More Prone to Assume Undue Influence

Unlike in Florida, challengers in California often can shift the burden of proof in undue influence cases to adult children or surviving spouses by using the closeness of the relationship to establish one or two elements of the above burden-shifting test. Dutiful children and spouses are not categorically immunized.

Indeed, recent California legislation left spouses in the same boat as other parties with respect to undue influence claims. Under Probate Code section 21385, at-death transfers between spouses by will, revocable trust, beneficiary form, or another instrument, are not subject to undue influence presumptions in Family Code section 721, but are subject to common law presumptions of undue influence.

A policy rationale for the California approach is that family members readily can abuse their access to an elder to gain financial advantage. For example, a 2019 study by the Keck School of Medicine of USC found that family members were the most commonly alleged perpetrators of financial elder abuse. Since undue influence occurs behind closed doors, it can be difficult to prove and thus there’s reason to facilitate such proof.

On the other hand, as Florida law recognizes, it is troubling to presume misconduct by a child or spouse who provides dedicated and loyal assistance to an elder. If we assume that a caregiving family member used coercion to get a larger inheritance, we are penalizing socially valuable behavior rather than encouraging it.

This isn’t to say that California courts disregard good conduct. In assessing whether close family members exerted undue influence, judges are likely to look favorably on those who provided caregiving services to elders who needed help.

An older California case illustrates the point. In Camperi v. Chiechi, 134 Cal.App.2d 485 (1955), an elderly father deeded two parcels of real estate to his daughter who lived across the street and had cared for him. Even if the relationship of trust and confidence rendered the deeds presumptively invalid, it was “perfectly natural” for the father “to be more bountiful” to the child who had “assumed the greatest burden of care and lavished the highest degree of solicitude on him.” To the extent daughter acquired influence over father “by acts of filial responsibility, loyalty and obedience,” such influence was “irreproachable.”

Still, should California join Florida in giving the benefit of the doubt to dutiful children and spouses by narrowing the reach of presumptive undue influence? It’s a topic worthy of discussion.