In California, a person is free to devise their separate property in a will to whomever they’d like (community property – meaning that property that was earned or accumulated during a marriage – automatically goes to the surviving spouse upon death). A person is also free to change his or her will over time, which means that, if you were promised a gift in a will, but the testator later changed his or her mind, then you are generally out of luck.
What is Undue Influence?
On the other hand, where family members (or other people) who are close to the testator use “undue influence” to get the testator to change the will in their favor, the court may invalidate the new will and reinstate the old will. Undue influence is generally defined as the use of mental or physical coercion to cause a person to change his or her will.
It is not uncommon to have a situation where a son or daughter who is particularly close to an aging parent (often living under the same roof) will wind up with the majority of the parent’s estate while more distant siblings are given a pittance or shut out entirely. In some cases, this comes about simply as a reward from the parent to the closer child as thanks for taking care of them in their elderly years, and this is perfectly legal.
But where the adult child used that close relationship to take advantage of the parent and unduly influence the parent to change the will, then the court will invalidate the will. With that distinction in mind, the question becomes how to prove undue influence by a family member in a California court.
Raising a Presumption of Undue Influence in California
Proving that undue influence occurred can be challenging as the testator is dead, and the person who may have unduly influenced the testator is not likely to provide information invalidating the will. Because of this difficulty in proving undue influence, California courts will presume that undue influence occurred where it can be shown that:
- The proponent of the will (the person being accused of undue influence) had a “confidential relationship” with the testator. Parents and their children are presumed to have a confidential relationship in California.
- The proponent of the will actively participated in the execution or preparation of the will. This might be shown through proving that the proponent procured the services of an attorney, or requested that the will be created.
- The proponent of the will benefitted from the changed will. If a son living with a mother received a 60% share of the mother’s assets while his two sisters each received 20% apiece, and the previous will had equal shares among the three siblings, this would satisfy this prong.
If all three of these are met, the court will presume that undue influence occurred. At that stage, the court would hear evidence from the proponent of the will that the will was not the result of undue influence. If the court is not satisfied with the proponent’s evidence, or if the proponent cannot produce any evidence, then the court will invalidate the disputed sections of the will or the entirety of the will, and reinstate a previous will.
Work with a Trusted Pasadena Probate Attorney
Were you cheated out of your inheritance by a person who coerced your loved one to change it? You may have recourse. Christopher B. Johnson, located in Pasadena, California, can help. To request an immediate consultation, contact him today at (877) 755-9178.