The New Definition of Undue Influence – Irvine, Orange County
The definition of undue influence as we knew it changed on October 9, 2013, when Governor Jerry Brown signed AB 140, changing the definition of undue influence in Orange County, and all of California as “excessive persuasion that causes another person to act or refrain from acting by overcoming that person’s free will and results in inequity.” However, consideration of AB 140’s text and legislative history reveals that it should be understood the new definition of undue influence is a clarification — as opposed to a rewrite — of the definition of undue influence in California. New Probate Code section 86 also provides, in part, that “
[i]t is the intent of the Legislature that this section supplement the common law meaning of undue influence without superseding or interfering with the operation of that law.
Undue influence is a recognized ground for contesting a testamentary instrument. A testamentary instrument that is a product of undue influence is invalid. Although the Probate Code authority for invalidating testamentary instruments refers only to the invalidity of a will procured by undue influence, a trust instrument procured by undue influence is equally invalid. Accordingly, AB 140 will directly impact both trust and will contests.
New Statutory Scheme for Undue Influence
The new definition of undue influence goes into effect on January 1, 2014, and creates two new code sections — Welfare and Institutions Code section 15610.70 and Probate Code section 86 — and it amends an existing statute, Welfare & Institutions Code section 15610.30.
Welfare and Institutions Code section 15610.70
The new definition of undue influence lists four separate factors courts must consider in determining whether the facts in a given matter amount to undue influence. The four important listed factors — vulnerability of the victim, the influencer’s apparent authority, actions or tactics used by the influencer, and the equity of the result. It should be noted that these are factors of undue influence, they are not elements of a claim for undue influence. Although the court must consider each factor, there is no requirement that any or all of the factors be present for a court to determine that undue influence has been shown.
The only additional requirement in the statute circumscribing the court’s consideration of the four listed factors is Welfare and Institutions Code section 15610.70, subdivision (b), providing that “[e]vidence of an inequitable result, without more, is not sufficient to prove undue influence.” This provision seems to be unnecessary as subsection (a) defines undue influence as excessive persuasion that causes a person to act or refrain from acting by overcoming that person’s free will and resulting in inequity. In other words, under subsection (a), inequity is merely one element of undue influence. For undue influence to exist, there must be (1) excessive persuasion (2) causing another person to act or refrain from acting (3) by overcoming that person’s free will (4) resulting in inequity. A challenged action or inaction is not a product of undue influence unless all four elements are present.
Probate Code section 86
Probate Code section 86 essentially was added so that each of the numerous references to undue influence in the Probate Code, particularly with respect to will and trust contests, now has the meaning set forth in Welfare and Institutions Code section 15610.70, rather than Civil Code section 1575.
Welfare and Institutions Code section 15610.30
Welfare and Institutions Code section 15610.30 was added so that the new definition of undue influence would apply to claims for financial elder abuse.
Orange County Trust Contest Attorneys
If your loved one has been unduly influenced by another, or if you have been accused of committing undue influence by another, contact John Wong, Orange County Trust Contest Attorney at Modern Wealth Law.
John Wong advises on all aspects of estate planning, probate, asset protection and trust administration. He believes that estate planning is about planning for life; while having protections in place should the unexpected occur.
