How do you know when influence becomes undue? People influence one another every day, it’s part of being social. But when influence crosses the line it becomes undue and that can cause a California Will or Trust to be invalidated.
The problem is articulating the undue influence standard. In California, we have two ways of proving undue influence—directly and by shifting the burden of proof to the opposing party. The burden shift approach has a nice, concise rule; you have to show (1) a confidential relationship, (2) procurement of the contested Will or Trust, and (3) undue benefit. Proving undue influence without the burden shift, however, has been a bit more confusing. That is, until now.
Effective January 1, 2014, the California Legislature has introduced a new standard for proving undue influence directly (found at Welfare and Institutions Code Section 15610.70; and made applicable to the Probate Code by Probate Code Section 86), and it consists of the following four factors:
- The vulnerability of the victim,
- The influencer’s apparent authority,
- The actions or tactics used by the influencer, and
- The equity of the result.
The statute specially states that an inequitable result, by itself, is not enough to establish undue influence (Welfare and Institutions Code section 15610.70(b)). The statute also claims that it is not meant to replace existing law and authority on undue influence (Probate Code section 86). But (and this is a big but) this new standard will go a long way in streamlining the use of undue influence in California Trust and Will cases even where the burden shift elements are not present. In other words, the muddy mess of undue influence law just became much clearer.
What do these four factors really mean in the real world? Let’s figure that out. In this post I will address the first factor, vulnerability of the victim. I will cover the other three in subsequent posts.
Vulnerability of the victim. Under 15610.70(a)(1), vulnerability includes “mental 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.”
In practice, dementia and Alzheimer’s disease are the most common mental conditions that create vulnerability. And a well-trained medical expert can examine a decedent’s medical records and determine the level to which that person was susceptible to undue influence because the greater the mental impairment, the greater the vulnerability.
But the statute does not limit vulnerability to mental defects alone, which is an important point. In other words, people can be susceptible to undue influence for any number of reasons even if they are not suffering from dementia. The statute references illness, injury, education, emotional distress, and isolation as separate grounds on which a vulnerability claim can be based.
In contrast, to prove a lack of capacity, the law mandates that you prove a mental defect is present (see Probate Code section 811). Yet, the first factor of undue influence sidesteps this requirement—meaning that undue influence may be a more versatile claim to make than lack of capacity. Undue influence may apply where there is no capacity problem at all. But there still must be a vulnerability. That means there must be some evidence present that demonstrates how and why the decedent was vulnerable to undue influence.
Since this statute is so new, we don’t have any appellate authority to further explain this factor. But over time this factor holds a lot of promise for expanding the reach of undue influence claims in California.