In movies and novels one often hears the term, “undue influence" utilized to denote a testator being fooled or frightened into leaving their estate to some conniving person or relative. Like many legal terms, the actual legal requirements to demonstrate undue influence are far more precise than the average layperson may think.

If one can prove undue influence, one can invalidate a Will or Trust. This can result in the reinstatement of the prior Will or Trust, or even the person who died being considered as dying intestate.

But there can be severe dangers to seeking to invalidate a Will or Trust. Many Wills and Trusts also have a disinheritance clause (no-contest clause). If a person contests their provisions and loses, they are disinherited from any bequest that might have been given them in the Will or Trust. These clauses are generally enforceable, so before any person seeks to prove undue influence, it is vital to consider what must be proven to succeed in that effort and to obtain experienced professional advice. Emotions must be subsumed in careful analysis.


Elements Necessary to Prove Undue Influence

A testamentary instrument can be overturned if it is proven by the person contesting it that the person’s actual intentions were improperly influenced to the point that the person's intentions were actually overcome by the inappropriate influence. But the law also requires more. The court requires the three criteria below also be proven:


· Confidential Relationship

· Active Participation

· Undue Profit


Confidential Relationship

There must be a confidential relationship between the party making the will and the person alleged to have exerted undue influence. Estate of Goetz (1967, 1st Dist) 253 Cal App 2d 107.

According to Estate of Rugani (1952) 108 CA2d 624, 630, a confidential relationship exists whenever trust and confidence are placed by one person in the integrity and fidelity of another. A blood relationship may be important but not necessarily sufficient to prove that a confidential relationship exists. Estate of Llewellyn (1948) 83 CA2d 534, 562. The relationship and duties involved need not be legal, they may be moral, social, domestic or personal. Estate of Bliss (1962) 199 CA2d 630, 640. A confidential relationship often arises when a vulnerable, weaker party is unable to protect himself or herself from the stronger party. Richelle L. v. Roman Catholic Archbishop (2003) 106 CA4th 257, 272.


Active Participation

There must be activity on the part of the beneficiary in procurement of the will. Estate of Goetz (1967, 1st Dist) 253 Cal App 2d 107.

Active participation cannot be inferred when a beneficiary simply accompanies the testator to the attorney’s office. There must be evidence that the testator went there at the beneficiary’s instigation or request, or evidence that the testator was not acting in accord with his or her own desire. Estate of Lingenfelter (1952) 38 C2d 571, 586. The fact that a beneficiary urged the testator to make a will does not establish undue influence, absent evidence that the beneficiary urged the testator to make any particular disposition. Estate of Mann (1986) 184 CA3d 593, 608. See Estate of Garibaldi (1961) 57 C2d 108, 113 for an example of active participation. (Proponent was present when the will was executed, gave the testator the pen and paper, was given the will by the testator immediately after execution and took it to the attorney whom the testator did not know.)


Undue Profit

There must be undue profit to the beneficiary. Estate of Goetz (1967, 1st Dist) 253 Cal App 2d 107.

Undue profit can be determined by taking a variety of factors into consideration. The court will evaluate the relationship between the decedent and the beneficiary. They will also consider the dispositions in previous wills and other past expressions of the decedent’s intent. Estate of Sarabia (1990) 221 CA3d 599, 607. For an example of a case where undue profit was determined see Estate of Graves (1927) 202 C 258 (where the beneficiary who received almost the entire estate had removed the testator from the hospital to apartment over garage in his own home where the testator executed the will in his presence and in the presence of a doctor and nurse chosen by the beneficiary.)



Fraud is also sometimes an element of undue influence when the party exerting undue influence uses false statements to poison the testator’s attitude towards the contestant. California Trust and Probate Litigation (2005) § 6.29.


Burden Of Proof

Ordinarily, the person challenging the will bears the burden of proof of undue influence, but the burden of proof shifts from the contestant to the proponent of the instrument when a presumption of undue influence arises. A presumption of undue influence arises with the existence of the three elements discussed previously above. Therefore, in order to shift the burden of proof, the challenger must show that: a confidential relationship existed between the testator and person alleged to have exerted undue influence, there was active participation of the person alleged to have exerted undue influence in procuring the instrument’s preparation or execution, and the person alleged to have exerted undue influence would benefit unduly from the instrument. Rice v. Clark (2002) 28 Cal. 4th 89, 96-97.

Recall that in addition to the criteria above, it must be shown that the actual intent of the testator was subverted by the combination of factors above so that the influence was such as to allow voiding of the Will or Trust.



Courts do not like to invalidate testamentary instruments thus the party challenging them must develop and analyze the case and evidence closely before launching a challenge in the Courts. Quite often Elder Abuse becomes a corollary cause of action brought in these types of proceedings since often the elements of undue influence blend into the elements of that type of action.

This is the type of case that can destroy families, result in massive losses if a disinheritance clause is involved…but which is often brought precisely because such wrongful conduct is all too common within families today.

The key is not to automatically bring the action if justified…but to very carefully analyze the strength of the case and the ramifications of bringing it before filing in court.