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UNDUE INFLUENCE:
WHAT IS IT AND HOW DOES IT EFFECT WILLS?
Introduction:
In movies and novels
one often hears the term, “undue influence" utilized to denote a
testator being fooled or frightened into leaving their estate to some
conniving person or relative. Like many legal terms, the actual legal
requirements to demonstrate undue influence are far more precise than
the average layperson may think.
If one can prove
undue influence, one can invalidate a
Will or Trust. This can
result in the reinstatement of the prior Will or Trust, or even the
person who died being considered as dying
intestate.
But there can be
severe dangers to seeking to invalidate a Will or Trust. Many Wills and
Trusts also have a disinheritance clause (no-contest
clause). If a person contests their provisions and loses,
they are disinherited from any bequest that might have been given them
in the Will or Trust. These clauses are generally enforceable, so before
any person seeks to prove undue influence, it is vital to consider what
must be proven to succeed in that effort and to obtain experienced
professional advice. Emotions must be subsumed in careful analysis.
Elements Necessary
to Prove Undue Influence
A testamentary
instrument can be overturned if it is proven by the person contesting
it that the person’s actual intentions were improperly influenced to the
point that the person's intentions were actually overcome by the
inappropriate influence. But the law also requires more. The court
requires the three criteria below also be proven:
·
Confidential Relationship
·
Active
Participation
·
Undue
Profit
Confidential Relationship
There must be a
confidential relationship between the party making the will and the
person alleged to have exerted undue influence.
Estate of Goetz
(1967, 1st Dist) 253 Cal App 2d 107.
According to
Estate of Rugani (1952) 108 CA2d 624, 630, a confidential
relationship exists whenever trust and confidence are placed by one
person in the integrity and fidelity of another. A blood relationship
may be important but not necessarily sufficient to prove that a
confidential relationship exists. Estate of Llewellyn (1948) 83
CA2d 534, 562. The relationship and duties involved need not be legal,
they may be moral, social, domestic or personal. Estate of Bliss
(1962) 199 CA2d 630, 640. A confidential relationship often arises when
a vulnerable, weaker party is unable to protect himself or herself from
the stronger party. Richelle L. v. Roman Catholic Archbishop
(2003) 106 CA4th 257, 272.
Active
Participation
There must be
activity on the part of the beneficiary in procurement of the will.
Estate of Goetz
(1967, 1st Dist) 253 Cal App 2d 107.
Active participation
cannot be inferred when a beneficiary simply accompanies the testator to
the attorney’s office. There must be evidence that the testator went
there at the beneficiary’s instigation or request, or evidence that the
testator was not acting in accord with his or her own desire. Estate
of Lingenfelter (1952) 38 C2d 571, 586. The fact that a beneficiary
urged the testator to make a will does not establish undue influence,
absent evidence that the beneficiary urged the testator to make any
particular disposition. Estate of Mann (1986) 184 CA3d 593, 608.
See Estate of Garibaldi (1961) 57 C2d 108, 113 for an example of
active participation. (Proponent was present when the will was executed,
gave the testator the pen and paper, was given the will by the testator
immediately after execution and took it to the attorney whom the
testator did not know.)
Undue
Profit
There must be undue
profit to the beneficiary. Estate of Goetz
(1967, 1st Dist) 253 Cal App 2d
107.
Undue profit can be
determined by taking a variety of factors into consideration. The court
will evaluate the relationship between the decedent and the beneficiary.
They will also consider the dispositions in previous wills and other
past expressions of the decedent’s intent. Estate of Sarabia
(1990) 221 CA3d 599, 607. For an example of a case where undue profit
was determined see Estate of Graves (1927) 202 C 258 (where the
beneficiary who received almost the entire estate had removed the
testator from the hospital to apartment over garage in his own home
where the testator executed the will in his presence and in the presence
of a doctor and nurse chosen by the beneficiary.)
Fraud
Fraud is also
sometimes an element of undue influence when the party exerting
undue influence uses false statements to poison the testator’s attitude
towards the contestant. California Trust and Probate Litigation (2005) §
6.29.
Burden Of Proof
Ordinarily, the
person challenging the will bears the burden of proof of undue
influence, but the burden of proof shifts from the contestant to the
proponent of the instrument when a presumption of undue influence
arises. A presumption of undue influence arises with the existence of
the three elements discussed previously above. Therefore, in order
to shift the burden of proof, the challenger must show that: a
confidential relationship existed between the testator and person
alleged to have exerted undue influence, there was active participation
of the person alleged to have exerted undue influence in procuring the
instrument’s preparation or execution, and the person alleged to have
exerted undue influence would benefit unduly from the instrument.
Rice v. Clark (2002) 28 Cal. 4th 89, 96-97.
Recall that in
addition to the criteria above, it must be shown that the actual intent
of the testator was subverted by the combination of factors above so
that the influence was such as to allow voiding of the Will or Trust.
Conclusion:
Courts do not like
to invalidate testamentary instruments thus the party challenging them
must develop and analyze the case and evidence closely before launching
a challenge in the Courts. Quite often
Elder Abuse
becomes a corollary cause of action brought in these types of
proceedings since often the elements of undue influence blend into the
elements of that type of action.
This is the type of
case that can destroy families, result in massive losses if a
disinheritance clause is involved…but which is often brought precisely
because such wrongful conduct is all too common within families today.
The key is not to
automatically
bring the action if justified…but to very carefully analyze the strength
of the case and the ramifications of bringing it before filing in court.
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