If you have an undue influence claim, here are the top five things you must consider in bringing your claim in court:

    1.  It’s a Two-Headed Monster

Starting January 1, 2014, the definition of undue influence was unified under Welfare and Institutions Code Section 15610.70.  That means the same facts and circumstances that you use to directly prove undue influence to overturn Trusts and Wills are also used (or usable) to bring a financial elder abuse claim based on undue influence.  So every Trust and Will contest becomes a potential financial elder abuse case too.  And elder abuse claims are given jury trials, allow for punitive damages, and recovery of attorney’s fees—all things you CANNOT get in a Trust or Will contest lawsuit.

    2.  Equity Isn’t Enough

An unfair result, by itself, is not enough to prove undue influence.  Unfortunately, a parent can treat a child unfairly if he or she chooses to do so.  Undue influence is essentially the replacing of the decedent’s intent with that of a wrongdoer.  So if the parent chose to act unfairly, so be it, the law has no problem with that.  If a wrongdoer coerced the parent into acting unfairly, then you may have undue influence.

    3. Shifting the Burden of Proof

Undue influence is one of the few claims where you can shift the burden of proof onto the wrongdoer to prove that they did NOT engage in undue influence.  But to do so, you first need to prove that (1) the wrongdoer was in a confidential relationship with the decedent, (2) the wrongdoer actively participated in procuring the Trust or Will, and (3) the wrongdoer unduly benefitted from the new document.

    4. You Still Need a Weak Mental State

The first element for undue influence is that the decedent was susceptible to being unduly influenced.  They do not need to be incapacitated, per se, just susceptible to influence.  The other elements focus on the actions of the wrongdoer, but you still need a medical expert to testify to whether the decedent was susceptible to undue influence.

    5. Undue Influence Requires a Good Back-Story

Anytime you are asking the court to overturn a Trust or Will, you need a compelling reason to do so.  California Trust and Will contests are decided by judges (called a bench trial) and judges are people too.  Most judges have seen it all, so while your case may seem outrageous to you, it is just another case to the judge.  And most judges want to reach the “right” result, which means your case needs to compel the judge to make things “right” by overturning the Trust or Will.  Judges are not compelled to do that just because you ask them to do so.  But they are inclined to act when presented with a back-story that shows that someone took an unfair advantage of a decedent.  Therefore, a good back-story of events that occurred leading up to the Trust or Will creation is vital to winning your undue influence case in court.