Dear  B.N.:

"Undue influence", within the context of challenging the validity of a Will, refers to the use of menace, duress or coercion, which deprives a person of the required "free agency" necessary to validate any Will or other testamentary devise.

California law renders a Will is invalid, to the extent "undue influence” is shown to have been used in its making.  Generally speaking, the question of whether or not "undue influence" has occurred in a particular case is often determined by a court of law after the testator’s death.

In order to have all or part of a Will (or other testamentary device) set aside based upon a showing of "undue influence", a claimant must affirmatively show:

(1)  That the testator (the will-maker) was particularly susceptible to the influence or domination by another (such as in the case of a person, who was very elderly, physically infirm, handicapped, mentally incompetent etc.); and,

(2)  That the person accused of subjecting the testator to "undue influence" had an opportunity to do so (i.e. substantial time spent alone with the testator); and,

(3)  That person accused of exerting "undue influence" had a motive or disposition to influence the testator for personal benefit; and,

(4)  That the provisions of the "influenced" Will or other testamentary device appear to be an "unnatural" or an unexpected result (the existence of a contrary prior Will can satisfy this requirement); and,

          (5)  That such a result arose out of the accused party’s coercive conduct. 

Other factors, when shown to exist, can help to create a "presumption" that undue influence has occurred.  For example, when any beneficiary under the Will, is also a witness to the signing of a Will.  A witness, who is also a beneficiary, may be deemed an "interested witness", thereby potentially creating an inference of "undue influence".

The existence of a "confidential relationship" between the testator and the accused party, also, may create a presumption of "undue influence", where opportunity, motive, and an "unnatural testamentary result", also, are also shown to exist.  Recognized examples of such "confidential relationships" include "attorney and client", and "doctor and patient", in addition to any other fiduciary-type relationship.

When a court finds that "undue influence" has occurred, all or part of the  Will deemed to affected by the undue influence may be invalidated by the court, and disposition of the affected property may thereafter be distributed by court order, either according to applicable "intestate" distribution laws, or pursuant to the court’s assessment of the decedent’s actual intention, or according to other equitable considerations.

Our readers should understand that the process involved in challenging a Will is not easy, quick, or inexpensive, and, frequently, it is not successful.  Anyone thinking about a Will contest should immediately consult with an experienced and knowledgeable probate law attorney, who can give them advice and counsel tailored to meet their specific needs.

fd 619       6/13/03
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