This is part four 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 and apparent authority in my last posts.  Now let’s discuss the third factor—actions or tactics used by the influencer.

The Equity of the Result.  Equity simply means fairness.  In the undue influence context, equity means was the last Will or Trust a fair result?  The answer to that question can change depending on whom you ask.  The undue influencer will have a million reasons why the Will or Trust is fair; whereas the disinherited family members will disagree. 

But the law does not really care about unfair result per se.  In fact, Welfare and Institutions Code section 15610.70(b) specifically states “evidence of an inequitable result, without more, is not sufficient to prove undue influence.”  Wills and Trusts can be unfair—so says the law. 

As a factor of undue influence, however, an unfair result can establish proof of abusive behavior.  Specifically, evidence of equity for undue influence includes “economic consequences to the victim, any divergence from the victim’s prior intent or course of conduct or dealing, the relationship of the value conveyed to the value of any services or consideration received, or the appropriateness of the change in light of the length and nature of the relationship.”  See Welfare and Institutions Code section 15610.70(a)(4).

In other words, a short relationship with a part-time caregiver who ends up with the entire estate may be inequitable from an undue influence perspective.  But leaving an entire estate to the testator’s spouse of twenty years may not be inequitable, even if it disinherits children from a prior marriage.  It all depends on the facts and circumstances.

Some of the evidence we typically look for includes a divergence from long-standing prior estate plans, benefitting people who have not been around long or who did not do much for the victim, or below-market transaction with the victim prior to death.  Each of these situations evidences a highly inequitable result, and can be persuasive in proving undue influence in Court.