There are many factors that could lead to a person’s estate plan being thwarted; one of the most common is undue influence.
- Did a family member drastically change their will or trust from their deathbed at the urging of someone close to them?
- Did a sibling influence your parent to disinherit you and leave them everything?
- Did a caregiver persuade your loved one to leave them an unusually large gift in their will or trust?
- Did a decedent revoke their will or trust after their spouse badgered them to do so?
As people age, and their cognitive and physical health decline, it is not uncommon for them to fall victim to various forms of elder financial abuse — one of which is undue influence. While the above scenarios don’t guarantee that undue influence in a trust or will was present, they do point to a possibility that it was used.
Luckily, in potential cases of undue influence in wills and trusts, if a trust and will disputes attorney is consulted in a timely fashion, the proper steps can be taken to ensure the decedent’s true final intentions, not the intentions of their abuser, are carried out.
What Is Undue Influence in a Will or Trust?
One of the most common contexts in which undue influence is used is in the context of wills and trusts, but it can occur in other contexts as well, such as in the conveyance of a deed (which may require you to contest the deed transfer).
The definition of undue influence in Probate Code section 86 is identical to the definition in California Welfare and Institutions Code section 15610.70.
Both codes state:
“Undue influence” means excessive persuasion that causes another person to act or refrain from acting by overcoming that person’s free will and results in inequity.
In cases of undue influence in wills and trusts, the same definition applies. In other words, for undue influence to have taken place, the creator of the will (called the testator) or the creator of the trust (called the settlor, grantor or trustor) generally should have been pressured or persuaded by someone to create, modify, execute or revoke their will or trust, or refrain from taking one of those actions, in a way that conflicted with their true intent.
Generally, if undue influence is to be used as justification for a trust or will contest, the testator or settlor’s actions or inaction should have resulted in the inheritances of certain heirs and/or beneficiaries either having been reduced or eliminated.
Note that duress, which is when serious threats are inflicted on someone to coerce them into acting according to perpetrator’s interests, is also a form of undue influence, but it is less common than ordinary influence in the context of wills and trusts.
We’ll discuss undue influence in a will or trust at more length in the next section.
What Is the Remedy for Cases of Undue Influence in Wills & Trusts?
When it comes to cases of undue influence in wills and trusts, the abuse is generally not discovered until after the victim has died. This is because abusers tend to excessively persuade or pressure the victim behind closed doors to avoid detection. What’s worse, the abusers are often persons who are supposed to have the victim’s best interests at heart, such as their family members and fiduciaries.
Because of the surreptitious tactics of influencers, you should always be on the lookout for red flags. For example, if a relative who is elderly is changing their will out of nowhere and without apparent reason, that should be a red flag indicating possible undue influence.
The good news is that in cases of undue influence in wills and trusts, the damage caused by the abuse potentially can be reversed by challenging the will or trust that was obtained through undue influence in court. However, to be successful in your undue influence will contest or trust contest, you will need to know how to prove undue influence in a will or trust.
What Constitutes Undue Influence in a Will or Trust?
People influence one another to do things every day, but what makes the influence someone applies on another person undue influence?
There are specific factors that differentiate undue influence from ordinary influence, and each of these factors will need to be proven to challenge a will or trust on the basis of undue influence.
To prove undue influence, you will need to demonstrate:
- The victim was vulnerable (e.g., they were of advanced age or had diminished mental capacity).
- The influencer had authority over the victim (e.g., they were a fiduciary or close relative).
- The influencer took actions or employed tactics to cause the victim to override their own free will (e.g., they withheld medical care or affection, or exerted excessive pressure on the victim).
- The results were inequitable (e.g., the influencer was left a disproportionate share of the victim’s estate).
As you can see, there is a lot that goes into proving that undue influence resulted in an altered will or trust. While contesting a will or contesting a trust on the basis of undue influence can be a lot to take on so soon after the death of your loved one, an experienced probate attorney will be able to do most of the heavy lifting so you can take the time you need to grieve.
If undue influence is successfully proven, the will or trust at issue will be invalidated, which can result either in a prior version of the decedent’s will or trust (if they had one) being used instead, or in the decedent’s assets being distributed to their heirs in accordance with California’s intestate succession laws.
Intestate succession laws generally call for the disposal of the decedent’s assets to their surviving spouse and children, or to whomever their closest relatives are, whether that be their grandchildren, parents, siblings, or nieces and nephews.
Keystone’s trust and will contest attorneys have worked on many cases of undue influence in wills and trusts in which they were successful in invalidating gifts to influencers.
Click on the links below to read the detailed case studies.
Case Study: The “Sugar Daddy” Abuser: Elder Unduly Influenced into Giving Assets to Abuser
Case Study: Recovering Stolen Assets: Keystone Helps Retrieve Millions From a Decedent’s Financial Abusers
Case Study: Breach of Trust Cases: Keystone Secures Victory for Client After Trustee Uses Trust to Fund Own Lifestyle
Who Has the Burden of Proof in Cases of Undue Influence in Wills & Trusts?
In general, the burden of proof will rest with the person bringing trust or will contest. Undue influence, in other words, must be proven by the person filing the claim.
That said, there are times when the burden of proof can shift to opposing party, leaving the alleged influencer to have to prove to the court that they did not use undue influence on the victim to obtain a particular result. The burden of proof generally will shift for “disqualified persons.”
Certain categories of people (along with their cohabitants, family members and employees) are considered “disqualified persons,” according to Probate Code section 21380.
Disqualified persons can include:
- Drafters of wills and trusts
- Transcribers of wills and trusts
- Caregivers
When one of the categories of people mentioned above (or their close acquaintances) are left sizable gifts in a decedent’s will or trust, undue influence is presumed.
Even if the alleged abuser does not fit into one of these categories, a burden-shifting presumption can still apply if the alleged abuse was in a confidential relationship with the victim (e.g., a fiduciary or trusted family member) and actively procured the change to the will or trust in a way that benefitted the alleged abuser.
If the court finds that the alleged abuser did unduly influence the decedent, then not only will their gift be invalidated, but they could be ordered to pay damages, as well as the other side’s attorney’s fees and costs. A skilled lawyer can help to invalidate a gift made to a disqualified person via a will or trust.
Who Can Contest a Will or Trust on the Grounds of Undue Influence?
To challenge a trust or challenge a will due to undue influence, you should have what is known as standing. In the context of will and trust contests, you have standing if a successful contest would result in you receiving a larger inheritance.
It is generally beneficiaries or heirs who challenge a trust or challenge a will due to undue influence; however, in some instances, it may be the executor or trustee who initiates the will or trust contest proceeding.
A good rule of thumb is for executors and trustees to stay out of will and trust disputes if their involvement could be interpreted as being partial to certain beneficiaries over others, since they have a duty of impartiality and could be sued for fiduciary misconduct. However, if the executor or trustee is also a beneficiary of the estate or trust they manage, it may be appropriate for them to challenge the document in their capacity as a beneficiary.
How Long Do You Have to Contest a Will or Trust on the Grounds of Undue Influence?
Is there a time limit to contest a will or trust? If you plan on contesting a trust or contesting a will due to undue influence, you must do so within a certain timeframe.
A will contest must be filed either prior to the will’s admission to probate or, if a will has already been admitted to probate, then 120 days from the date of the will’s admission to probate. If the document being contested is a trust, then you generally have 120 days from the date the notice under Probate Code section 16061.7 is mailed.
It should be noted, however, that due to recent changes to Probate Code section 15800, if you suspect undue influence, another form of elder financial abuse or a lack of capacity to have impacted the provisions of a settlor’s trust, you should bring your contest as soon as you become aware of the altered document, even if the settlor is still alive. If the court learns you were aware of these changes but delayed action until after the settlor’s death, your trust contest could be barred.
How Much Does It Cost to Contest a Will or Trust on the Grounds of Undue Influence?
The cost of contesting a will or trust can be high, especially since proving undue influence can be difficult and your team of attorneys will likely need to carry out an investigation to form their arguments. While there is a possibility the court will order the opposing party to pay your attorney’s fees and costs if undue influence or another type of elder abuse is proven, it is always best to assume that you will be paying these expenses out of your own pockets because there is no guarantee of an award.
If cost is a concern, there is always the option of mediation between the parties. In mediation, the parties and their lawyers will try to negotiate a settlement with help from a neutral third-party moderator, known as a mediator (who usually is a retired judicial officer or experienced attorney).
It is best to consult with a will and trust contest lawyer before making any assumptions about cost, as they may be able to provide solutions that are within your budget.
Are you dealing with undue influence in a will or trust? Call our team for help securing your rightful inheritance.
Was your inheritance reduced or eliminated as a result of someone applying excessive pressure on a decedent to make drastic changes to their will or trust?
It’s unfortunate that undue influence in wills and trusts is something probate lawyers see all too often. Thankfully, California law provides remedies for dealing with such cases of undue influence in wills and trusts.
Keystone’s probate attorneys have extensive experience invalidating wills and trusts because of undue influence and are eager to help you ensure the true final wishes of your deceased loved one are carried out. Call us today to request a free consultation.
