The Ultimate Guide to Undue Influence

Key Takeaways

• Undue influence occurs when someone uses excessive persuasion, pressure, authority, or manipulation to overcome another person’s free will and obtain an unfair result.
• In estate disputes, undue influence is commonly alleged when a will, trust, beneficiary designation, or other estate plan is changed in favor of one person at the expense of intended beneficiaries.
• California courts evaluate undue influence by examining the victim’s vulnerability, the influencer’s authority or relationship, the tactics used, and whether the outcome appears inequitable.
• Family members, caregivers, romantic partners, friends, fiduciaries, and other trusted individuals can all be accused of exercising undue influence.
• Undue influence often overlaps with financial elder abuse, but the two claims are not identical.
• Evidence such as medical records, witness testimony, communications, isolation from family, and sudden estate-planning changes may be important in proving or disproving an undue influence claim.
• Strict deadlines often apply to trust contests and will contests, making prompt legal evaluation important when undue influence is suspected.

Introduction

Undue influence is a form of wrongful conduct that occurs when one person uses excessive persuasion, pressure, or manipulation to overcome another person’s free will and obtain an unfair benefit. In estate disputes, undue influence is commonly alleged when someone causes a vulnerable person to change a will, trust, or other estate planning document in a manner that does not reflect that person’s true wishes.

Undue influence can be actual or implied. In most cases, the party asserting undue influence bears the burden of proving it. If you suspect undue influence and need to contest a will or dispute a trust, here’s a guide.

What is undue influence?

Undue influence is a form of abuse. Undue influence is the abusive act of applying emotional, psychological or even physical pressure on another person to secure a benefit that person otherwise would not give them. In estate disputes, undue influence often involves manipulating or excessively persuading a person to change a will, trust, deed, beneficiary designation, or other estate-planning arrangement in a way that benefits the influencer. 

A textbook example often involves a new spouse or love interest who unduly influences their betrothed to bequeath to him or her a vacation home that had been previously intended for the parent’s children. Common tactics may include isolation, dependency, emotional pressure, intimidation, exploitation of vulnerability, or manipulation of a trusted relationship.

Generally, we see stepparents applying undue influence on an elderly spouse, resulting in the stepparent’s inheritance increasing, and the children’s inheritance decreasing. We also frequently see abusive children applying undue influence on their elderly parents to increase the size of their inheritance in a last will and testament, or increasing their trust fund distributions.

If you suspect undue influence, you should consult an undue influence attorney early to ensure critical evidence isn’t lost and you’re in the best position possible to take right that wrong. 

Undue Influence Definition and Meaning

The definition and meaning of undue influence, in wills and family trusts, generally refers to a situation where an abuser convinces a victim to increase the abuser’s inheritance, by use of threats, emotional abuse, withholding of sex or affection, or, in the worst of cases, even physical abuse.

Anecdotally, if an abusive child threatens to never speak to an elderly parent or keep them from seeing their grandchildren unless they’re given the vacation home that would have been split with all the kids, that may be considered undue influence.

Per California legislature and California Welfare and Institutions Code section 15610.70: 

“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.

What are examples of undue influence in families?

The most common examples of undue influence in families that we see include the following:

Stepparents unduly influencing mom or dad

The most common situation we address is a stepparent using undue influence to coerce their spouse to increase their inheritance or trust assets, thereby taking assets and monies away from other heirs, including stepchildren.

Children unduly influencing elderly parents

Equally common, we see abusive children threatening elderly parents in attempts to gain favor, or “get more in the will” than their brothers and sisters.

Caregivers unduly influencing elders

With some frequency, we protect children from losing their inheritance to caregivers who unduly influenced decedents.

Family friends unduly influencing elders

We also protect children and spouses from abusive friends of the deceased who used undue influence to get assets that were never intended for them.

Service providers unduly influencing elders

Finally, we have seen many cases involving service providers, advisors, caregivers, and other individuals who have developed a position of trust or influence with the decedent.

While these are the most common examples, undue influence abusers can include parents, children, husbands, wives, partners, trustees, beneficiaries, attorneys, pastors, doctors, administrators, conservators or guardians, fiancées, neighbors and more.

Undue Influence Burden of Proof

The person alleging undue influence generally bears the burden of proving the claim. The proper court and venue depend on the nature of the dispute and the applicable probate or trust proceeding, but often this means the person who suspects undue influence must file a case in the County Probate Court where the undue influencer lives, typically with the help of a probate attorney.

How is this different from other abuse cases? Well, if this were just a physical elder abuse case, the State of California may pursue criminal charges against the abuser, and the person filing the charge does not bear the burden of proof.

What are signs of undue influence?

The signs of undue influence can vary greatly. In a court of law, some of the signs of undue influence might be summarized as:

• Isolation from friends, family, or a social support system;
• Dependency upon the abuser;
• Abuser’s use of the victim’s financial assets; 
• Psychological abuse, threats and intimidation; 
• Physical violence, including threats of physical violence;
• Sudden or unexplained changes to a will, trust, deed, or beneficiary designation
• Secrecy surrounding estate-planning changes
• A previously uninvolved individual controlling access to the elder
• Often the abuse is perpetrated against someone with diminished mental capacity or physical abilities.

Is there an undue influence test?

Yes, sort of. California law identifies several factors courts consider when determining whether undue influence occurred. Per California legislature and California Welfare and Institutions Code section 15610.70: 

“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 determining whether a result was produced by undue influence, all of the following shall be considered:

(1) The vulnerability of the victim. Evidence of vulnerability may include, but is not limited to, incapacity, illness, disability, injury, age, education, impaired cognitive function, emotional distress, isolation, or dependency, and whether the influencer knew or should have known of the alleged victim’s vulnerability.

(2) The influencer’s apparent authority. Evidence of apparent authority may include, but is not limited to, status as a fiduciary, family member, care provider, health care professional, legal professional, spiritual adviser, expert, or other qualification.

(3) The actions or tactics used by the influencer. Evidence of actions or tactics used may include, but is not limited to, all of the following:

(A) Controlling necessaries of life, medication, the victim’s interactions with others, access to information, or sleep.

(B) Use of affection, intimidation, or coercion.

(C) Initiation of changes in personal or property rights, use of haste or secrecy in effecting those changes, effecting changes at inappropriate times and places, and claims of expertise in effecting changes.

(4) The equity of the result. Evidence of the equity of the result may include, but is not limited to, the economic consequences to the victim, any divergence from the victim’s prior intent or course of conduct or dealing, the relationship of the value conveyed to the value of any services or consideration received, or the appropriateness of the change in light of the length and nature of the relationship.

(b) Evidence of an inequitable result, without more, is not sufficient to prove undue influence.”

Is physical abuse considered undue influence?

While physical abuse also may be considered duress, it too will be presented to the court when trying to unwind an illegitimate will or trust on undue influence grounds. Evidence of physical abuse, threats, intimidation, or coercion may support an undue influence claim depending on the facts and circumstances. Read “The #1 Difference Between Undue Influence and Duress”

How do I win an undue influence case?

To win an undue influence case, you need evidence. We’re often asked, “How can you prove undue influence?” Well, the evidence must support the elements of proving undue influence, which were stated above:

1. Vulnerability of the victim.
2. The influencer’s apparent authority.
3. The actions or tactics used by the influencer.
4. The equity of the result.

Evidence of undue influence often consists of a subtle accumulation of evidence, rather than a single fact.  That evidence generally includes statements from the victim, abuser, loved ones, neighbors, care professionals, authorities, etc., but it also often includes digital communications like text messages, emails, social media posts, videos, and other evidence admissible in court. Strong evidence supporting these factors may improve the likelihood of successfully proving undue influence when contesting a will or trust.

Is there a statute of limitations on undue influence in California?

The applicable deadline depends on the type of challenge being asserted. Different deadlines may apply to trust contests, will contests, financial elder abuse claims, and related causes of action. Because some deadlines can be relatively short, anyone who suspects undue influence should seek legal advice promptly.

Undue Influence and Wills

Undue influence is a common component of contesting a will. Here’s a timeline of how we generally see will and trust contests playing out:

1. Decedent dies.
2. Beneficiaries mourn.
3. Probate or trust administration process begins.
4. Beneficiaries are notified of their inheritance when they receive a copy of the will or trust.
5. Beneficiaries are surprised assets have gone missing or they are getting less than expected.
6. Beneficiaries suspect undue influence.
7. One or more beneficiaries contact a probate dispute attorney.
8. A contest petition is filed in the county probate court.
9. The case is settled through the probate court processes or the matter is resolved at trial.

What if I’m falsely accused of undue influence?

If you’re falsely accused of undue influence, a probate litigation attorney can help protect you. Allegations of undue influence can arise whenever family members disagree about a decedent’s estate plan or the circumstances surrounding estate-planning changes.

Are undue influence cases common?

Undue influence is one of the more frequently asserted claims in in trust contests, will disputes, and estate conflicts.

Is undue influence the same as financial elder abuse?

Undue influence can be a component of financial elder abuse. Frequently, an abuser may use undue influence to commit financial elder abuse. However, financial elder abuse can also include something as simple as forging a signature on a check. Forgery is not a component of undue influence, but we often see them go hand-in-hand in our cases.

What should I do if I suspect undue influence?

If you suspect undue influence, consider documenting relevant facts, preserving communications and records, and consulting a probate litigation attorney promptly to evaluate potential claims and deadlines. The sooner you begin the process, the sooner and easier it will be to protect the victim and what they intended for their estate. Most law firms, like RMO, offer free consultations. Take advantage. There’s nothing to lose.

How much does an undue influence attorney cost?

Probate litigation can be expensive, but fee structures vary by lawyer and case. Depending on the jurisdiction and claims involved, attorneys, like RMO, may offer hourly, contingency, hybrid, or alternative fee arrangements. It really depends on what is fair for everyone. Don’t let fear that you “can’t afford it” deter you from taking advantage of a consultation with a probate attorney who may be able to help you get the result your loved one intended for you.

Do I need an undue influence lawyer near me?

We recommend finding an undue influence attorney familiar with the county probate court in the county where the victim lives or decedent lived. It is generally helpful to work with an attorney familiar with the court overseeing the trust or estate matter, as well as the local rules and procedures applicable to that proceeding.

For example, if the decedent lived in Orange County, California, yet the real estate property is in Los Angeles, we recommend working with a probate lawyer in Los Angeles. A Los Angeles probate lawyer will generally be more familiar with the Los Angeles Superior Court Probate Division, versus an out of state attorney.