It’s not uncommon for an attorney to hear from someone who claims to have been disinherited by a decedent because of undue influence exerted by a family member. As compelling as these cases may seem at first, a closer examination of the facts – especially how the will or trust was prepared – often fails to support a claim of undue influence.

The first step in analyzing such a claim is to determine from the available evidence whether a decedent had the necessary mental capacity to prepare and execute their will or trust.

Many heirs, along with some attorneys not familiar with probate and trust litigation, do not realize that there is one standard for the mental capacity necessary to prepare and execute a will, but a very different one for the capacity required to prepare and execute a trust.

California law merely requires that a person preparing and executing a will understand the nature of the testamentary act. That is, they must realize that they are making a will, know what assets they own, and be aware of the type of relationship they have with their family or others who will be affected by their will.

When it comes to a trust, however, the relevant statute imposes a higher standard, requiring that the person have the mental capacity necessary to enter into a contract.

The person preparing the trust must not only comprehend the rights, duties, and responsibilities created by or affected by their decision, but must also understand the probable consequences of that decision for them – and, where appropriate, for others affected by their decision. They must also recognize the risks, benefits, and reasonable alternatives connected to the decisions they are making.

A good estate planner will ensure that an individual has the necessary capacity at the time the will or trust is prepared and executed. Doing so can ensure that the instrument is likely to survive any contest which questions the validity of the will or trust after a decedent’s death.

After assessing the decedent’s mental capacity,  the next step is determining whether the will or trust is the result of undue influence.

Here the relevant statute states that undue influence exists when an individual in whom confidence is placed, and who has “real or apparent authority” over a victim, uses that confidence to take unfair advantage of the victim’s mental weakness, or uses the victim’s needs or distress to take advantage of them.

The Welfare and Institutions Code defines undue influence as “excessive persuasion that causes another person to either act or refrain from acting in a certain manner by overcoming that person’s free will and results in inequity.”

In determining whether this definition is met, courts evaluate the victim’s vulnerability based on several factors.

They look at the influencer’s authority and control of the victim’s necessities of life, including access to medication and healthcare, and whether he or she controls the victim’s interactions with others, has access to the victim’s information, or controls his or her sleep.

Other factors include whether the alleged undue influencer gave or withheld affection from the victim to control their actions; used intimidation or coercion to procure a will or trust; whether the influencer made changes to a victim’s ownership rights to property; and if such changes took place quickly or in secrecy.

To be unlawful, the influence must have resulted in the procurement of the will or trust and its desired distribution. There must be evidence that the victim’s free will was destroyed to obtain the will or trust.

Given those requirements, proving undue influence is not easy. The standard of proof to demonstrate undue influence – clear and convincing evidence – is not well understood by some attorneys who are unfamiliar with probate and trust litigation.

It is not enough to show that it is more likely than not that a person exerted undue influence. The evidence must show that it is highly probable that undue influence was used to obtain the will or trust.

Your brother may have moved mom into his home, fed her, taken her to the doctor, conducted her banking, and even driven her to the estate planner's office to prepare the will or trust, but those factors alone are not proof that he used  undue influence that resulted in your disinheritance.

The totality of all the circumstances must show that the individual attempting to exert undue influence sought to psychologically manipulate the victim and destroy his or her capacity for choice. For a knowledgeable probate and trust attorney, such facts are not the answer to the question of whether undue influence exists, but where their evaluation should begin.

By Stefan O’Grady