Many a soap opera storyline or tabloid headline has been built around the idea that a wealthy individual falls prey to a scheming outsider just before his or her death, and that outsider – whether it be an employee, a nurse, a lover, an estranged family member, or outright fraudster – convinces the wealthy individual to change their will and leave the outsider a huge gift at the expense of the rightful beneficiary.
What is Undue Influence?
This happens far too often in real life, and it calls into question whether the changed will is the product of what we call “undue influence,” and therefore invalid. So what happens if the will entered into probate court differs radically from your understanding of as to the intentions of the deceased, with regard to “who gets what?” Imagine your father promises all of his estate to you and your sister. But when the will is entered into probate, Instead of the property being given to your sister as expected, the father, in his last months, willed it to a nurse or caregiver, or to just another one of your siblings.
What recourse do you have? The first consideration is that it is possible that the testator’s free will may have been manipulated. The elderly, ill or infirm may suffer from some degree of cognitive impairment, making them easy targets for the unscrupulous. This is undue influence.
Under California law, a testator is required to have “testamentary intent” in creating a will for the will to be considered valid. Testamentary intent means the testator actually intended for the will to dispose of his or her estate. But if a petitioner can prove that the testator was unduly influenced in creating the will, this will disprove testamentary intent for some or all of the will, and therefore make some or all of the will invalid.
Establishing the Presence of Undue Influence Factors in a California Will
Successfully establishing the facts of undue influence can mean that all or part of a will can be deemed invalid, and an earlier will, if there is one, reinstated. Establishing that undue influence led to a change in a will can be an enormous challenge, as it occurs after the death of the person. The deceased is no longer here, able to corroborate either side’s position. A decision will largely depend on circumstantial evidence.
The California Supreme Court has listed five criteria that can be used to establish the presence of undue influence, although these are neither mandatory nor exclusive, and not all points must be present for a successful will impeachment:
- The provisions of the will were “unnatural.”
- The dispositions of the will contradict the intentions of the testator, expressed both before and after the execution of the will.
- There was a close relationship between the disputed beneficiary and the testator affording the beneficiary the opportunity to control the creation of the will provisions.
- The testator’s mental and physical condition was compromised such that their freedom of will could be taken advantage of in order to change the will.
- The person accused of exerting undue influence was active in procuring the will.
Undue influence can include several types of behavior, including:
- Poisoning family relationships;
- Over-medication of the testator;]
- Acting to isolate the individual from other loved ones;
- A high level of dependency, both physical and emotional which makes the person more vulnerable.
Litigating Undue Influence in Probate Court
Once such evidence of undue influence is admitted into probate, the court may also hear evidence of the proponent of the will indicating that the will or its specific sessions were not the result of undue influence. If the probate court determines that undue influence affected the creation of the will, the court may either invalidate the entire will or specific portions.
Estate planning and probate attorney, Christopher B. Johnson, located in Pasadena, California, can help you make a case for the invalidation of a will based on undue influence. To request a consultation, contact him today at (877) 755-9178.