A challenge to a will in California can occur for many reasons. A family member may have concerns regarding being excluded from a loved one’s estate plan. Or there may be an alleged failure to meet the formal requirements to execute a will (i.e., the will was not signed or witnessed as required under California law). One specific issue that may be raised by a party who contests a will, or other estate instrument, is that the testator was subject to circumstances of undue influence before or during the execution of the subject will or trust.
If you believe that your loved one was unduly influenced when creating a will, what should you do? How can you prevent allegations of undue influence for when your will is executed? Hiring an experienced estate planning attorney is an important step. He can give you a general understanding of how the applicable law works in California.
Undue Influence When Creating a Will
Claims of undue influence can be difficult to understand and prove, specifically because it often occurs behind closed doors and without witnesses. The California Supreme Court has described undue influence as “… pressure brought to bear directly on the testamentary act, sufficient to overcome the testator’s free will, amounting in effect to coercion destroying the testator’s free agency.” Rice v. Clark (2002) 28 Cal.4th 89, 96.
The following are recognized indications of undue influence:
- Provisions in a will that are “unnatural” and “cut-off” a close family member
- A chief beneficiary of a will who was active in procuring the execution of the instrument
- A relationship between a primary beneficiary and the decedent that afforded the beneficiary an opportunity to control the testamentary act
- A testator with cognitive deficiencies that make significant and substantial changes in his or her testamentary document
What the Court Considers When Determining Undue Influence
California Probate Courts look to California Welfare and Institutions Code §15610.70(a), which provides a definition of “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 following factors are considered by the Probate Court in determining whether a will was the result of undue influence:
- The vulnerability of the victim, including evidence of incapacity, illness, disability, age, education, impaired cognitive function, or isolation
- The alleged influencer’s authority, including evidence of status as a fiduciary, family member or care provider
- The actions used by the influencer, including evidence of actions to control the victim’s necessaries of life, medication, the victim’s information, or sleep
- The equity of the result, including evidence of the economic consequences to the victim or the appropriateness of any change in the will
The Presumption of Undue Influence in a Confidential or Fiduciary Relationship
It is important to know that under California law, certain confidential or fiduciary relationships between the decedent and a beneficiary can create a presumption of undue influence, which can consequently invalidate a will. A confidential relationship can exist whenever one person places trust and confidence in another. The question of whether a confidential relationship exists is always a question of fact and depends on the circumstances of each case. Confidential or fiduciary relationships can include, but are not limited to, relationships with attorneys, trustees, family members and friends.
California Probate Code §21380 specifically provides that an instrument is presumed to be the product of undue influence if a person in a fiduciary relationship with the testator “transcribed” the will or “caused it to be transcribed.” A will is presumed to be the product of undue influence in the circumstance that the preparer of the will or a care custodian of the testator is a beneficiary of the subject will. A will is also presumed to be a result of undue influence if a beneficiary is a relative, cohabitant, or employee of the above stated individuals.
Contact an Experienced Estate Planning Attorney
People rarely witness the act of undue influence. Proving whether the decedent was susceptible or vulnerable to undue influence often requires the expert testimony from medical experts or forensic psychiatrist, or from lay witnesses such as family members and friends. A will challenge based on undue influence is therefore costly and can involve extensive litigation.
If you or your loved ones are in the planning stage, it is wise to take steps to avoid future allegations of undue influence by contacting an experienced estate planning attorney to guide you through the process. Call Cottle Keen Lopiccolo & Heyde today.