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Proving undue influence occurred

Being disinherited by a loved one can be a hard pill for anyone in Westminster to have to swallow. In the wake of such action, one's immediate thoughts are likely to turn to discovering why this may have happened. One of the more common reasons may be that a testator has been unduly influenced by a caretaker or other personal confidant. The question then becomes how is one to prove this? 

Fortunately, the law recognizes that the circumstances of certain situations might automatically imply undue influence. Per Section 21380 of the California Probate Code, fraud or undue influence is presumed to have occurred when donative transfers from an estate are made to any of the following parties: 

  • The person who drafted the instrument detailing the transfer
  • The person who transcribed the instrument and who shared a fiduciary relationship with the transferor at the time of the transcription
  • The care custodian of the transferor (in the case that the transferor was a dependent adult) at or around the time the instrument detailing the transfer is executed. 
  • A person who is related by either blood or affinity (to the third degree) to any person described in the aforementioned scenarios 
  • A cohabitant or employee of any person described in the aforementioned scenarios
  • A partner, shareholder or employee of a law firm in which any person described in the aforementioned scenarios has an ownership stake

The following presumptions do not apply to cases where those described are related by blood or affinity (to the fourth degree) to the transferor. The same is true when the property transferred is valued at less than $5000, and the total value of the transferor's estate allows it to bypass the probate process (which, according to law, is $150,000). 

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