This is part two of a four part post discussing the newly created standard for proving undue influence directly in California Trust and Will contests.


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:

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

We covered vulnerability in my last post.  Now let’s discuss the second factor—apparent authority.

Influencer’s Apparent Authority.  Under 15610.70(a)(2), “apparent authority” includes things like a fiduciary (i.e., trustee or agent), family member, care provider, health care professional, legal professional (uh oh), spiritual adviser, expert (not sure what type of expert, but an expert is stated), or “other qualification.”  Well that is a long list of people who could have apparent authority. 

This is not the first use of “apparent authority” in California law.  In fact, Civil Code section 1575 (dealing mainly with contracts) has defined undue influence for years as “the use, by one in whom a confidence is reposed by another, or who holds a real or apparent authority over him, of such confidence or authority for the purpose of obtain an unfair advantage over him….”  (See Civil Code section 1575(1)). 

But what is the statute really getting at here?  Keep in mind that the entire concept of undue influence is where the independent free will of the testator is diverted by extraordinary and abnormal pressure.  (See Estate of Sarabia (1990) 221 Cal. App. 3d 599).  Apparent authority, then, is a factor to determine whether or not the pressure was abnormal enough to divert a testator’s free will.  In other words, a trustee, an agent, a family member, a lawyer, a pastor—all have the ability (given their close relationship to the testator) to exert an abnormal amount of pressure.  And that is what this factor is looking at, what is the relationship between the testator and the wrongdoer?  And is it the type of relationship where an abnormal amount of pressure would not be hard to exert?

For example, if your lawyer tells you that you must do something (like leave your entire estate to your lawyer) you are going to do just that because everyone always listens to his or her lawyer…right?  Well, maybe not.  But if the other factors listed above are present (such as vulnerability of the victim, actions of the influencer, and equity of the result), then having a lawyer tell the testator they must leave their assets in a certain way could influence that person to follow the lawyers instruction over the independent free will of the testator.  The same applies to a family member, care giver, or pastor.  The apparent authority, or confidence, someone has over the victim, can cause an increase in the potential for abuse. 

Apparent authority is just one factor.  Being a fiduciary, agent, or lawyer, by itself, is not enough to establish undue influence.  But as a factor, it holds an important point in proving undue influence in court.  So if you are trying to overturn a California Trust and Will, start looking for apparent authority evidence.