Probate Code §1801(b) describes two types of people for whom a conservator of the estate may be appointed:
One who is “substantially unable to manage his or her own financial resources,” and
One who is “substantially unable to … resist fraud or undue influence.”
The distinction makes sense because one who is substantially able to manage his affairs may nevertheless lack the resilience to resist fraud or undue influence, or, after the fact, the stamina necessary to rectify the wrong he has suffered. As a result, when the proposed conservatee is subject to fraud or undue influence, the evidence of lack of capacity probably need not be as convincing. If the petitioner can present clear and convincing evidence of the fraud or undue influence and can show that the proposed conservatee’s mental function deficits prevent him from resisting further wrongdoing, the court should appoint a conservator to protect the proposed conservatee and, if necessary, to redress the wrong already committed.Prob C §1801.
When the proposed conservatee is subject to fraud or undue influence, the alternatives to a conservatorship are rarely sufficient to protect the conservatee. Nevertheless, the petitioner must consider each alternative and explain to the court why it will not work. Prob C §1821(a)(3).
Probate Code §1801(b) describes two types of people for whom a conservator of the estate may be appointed:
Recognized indications of undue influence include
- Provisions that are unnatural, cutting off from any substantial bequests the natural objects of the decedent’s bounty;
- Dispositions at variance with the decedent’s intentions, expressed before and after the document’s execution;
- Relations existing between the chief beneficiaries and the decedent that afforded the former an opportunity to control the testamentary act;
- A testator whose mental and physical condition was such as to permit a subversion of his or her freedom of will; and
- A chief beneficiary under the will or trust who was active in procuring the execution of the instrument.
For purposes of will and trust contests, “undue influence” means “excessive persuasion that causes another person to act or refrain from acting by overcoming that person’s free will and results in inequity.”
The statutory definition of undue influence supplements the common-law meaning of the term, without superseding or interfering with the operation of that law. Under the common law, undue influence is conduct that subjugates the testator’s or settlor’s will to that of another, causing a disposition different from that which the testator or settlor would have made if permitted to follow his or her own inclinations.Undue influence is established when it is shown that a testamentary disposition was brought about by undue pressure, argument, entreaty, or other coercive acts that destroyed the testator’s freedom of choice so that it can fairly be said that the testator was not a free agent when making his or her will. Proof of general influence or opportunity to influence is not enough; there must be proof that the influence was used directly to procure the instrument.
Based on various reasons, there are substantive requirements and evidentiary rules that apply to the grounds most typically alleged to set aside all or part of a will or trust, including lack of capacity , undue influence, fraud , duress or menace , mistake , and limitations on transfers to drafters and others. Many of the elements of causes of action for contesting wills are identical or similar to those for contesting trusts. The statutory and case law rules for establishing lack of mental capacity in a will contest, for example, are for the most part equally applicable to trust contests. Mistake is a notable exception, however, serving as a ground for setting aside a trust but not normally useful in attacking a will.
A direct contest means a pleading filed with the court by a beneficiary that alleges the invalidity of a protected instrument or one or more of its terms on the basis of one or more of the following grounds (Prob C §21310(b)):
- Lack of due execution;
- Lack of capacity;
- Menace, duress, fraud, or undue influence;
- Revocation of a will under Prob C §6120, revocation of a trust under Prob C §15401, or revocation of an instrument other than a will or trust under the procedure for revocation that is provided by statute or by the instrument; or
- Disqualification of a beneficiary under Prob C §6112, §21350, or §21380.
Many times a caregiver will end up getting the entire estate including houses, jewelry, money, etc. However, that may not be allowed.
Probate Code Section 21350(a)(6) specifies that no provision, or provisions, of any instrument shall be valid to make any donative transfer where a care custodian of a dependent adult is the one whom is designated to receive the property.
Under Welf & I C §15610.17(y), a care custodian includes any person who provides either health services or social services. The court concluded that a “paid live-in caregiver” likeCaregiver in this case clearly provides social services and is therefore a care custodian. Thus, all donative transfers to Caregiver were presumptively barred.
A trial court found that Caregiver cooked, cleaned and drove Decedent to appointments, meeting and shopping, took care of Decedent and her home, and was Decedent’s “paid live-in caregiver.” A paid live-in caregiver clearly provides social services and is, therefore, a “care custodian,” giving rise to the presumption of undue influence.
Brian D. Lerner, California Trust Lawyer states that a Will that is obtained by fraud can be set aside and revoked. Will contestants frequently lump fraud and undue influence together as grounds for a contest because misrepresentations are often part of the pressure brought to bear on the testator states Brian D. Lerner. However, explains the California Trust Lawyer, fraud, however, is a separate and distinct ground of contest. When fraud alone is alleged, the contestant must show that the testator, even though acting of his or her own free will, was deceived into doing what he or she would not have done without fraudulent representations. It would probably be more successful to allege both fraud and undue influence in a Will Contest states Brian D. Lerner, California Trust Lawyer, as there are two different grounds of recovery.
The California Trust Lawyer asks, what exactly is fraud? The will contestant must prove that the false representations were made with the intent to deceive the testator and for the purpose of affecting his or her testamentary disposition. Brian Lerner, California Trust Lawyer, states that proving intent of a beneficiary with intent to deceive is not an easy matter and will require a significant amount of work and evidence to be shown to the Judge. The fraud need not be perpetrated at the time the will is executed, however, states Brian Lerner. Even when the false representations were made long before the will was executed, the fraud will essentially revoke the will if the testator’s belief in the representations persisted until the time of execution of the will and affected its terms states the California Trust Lawyer.
Brian Lerner asks what happens if fraud is found? If fraud is demonstrated, explains the California Trust Lawyer, only the will provision procured by the fraud is invalidated. The entire will is invalidated, however, explains Brian Lerner, California Trust Lawyer, if the fraud affects the entire testamentary disposition; the invalidated portions of the will are not severable from the rest of the will; or all the beneficiaries participated in the fraud.
Many times, states Brian D. Lerner, California Trust Lawyer, an attorney will not see the fraud right away as the client is unaware of it. Therefore, it would be incumbent on any California Trust Lawyer to be sure that he or she inquires into exactly how the Will was made, who are the beneficiaries, who spoke with the testator, where the facts are coming from and who essentially made the provisions of the Will itself.
Brian D. Lerner, California Trust Lawyer, states that you will have to go to Probate to enter into a Will Contest if there is fraud.
A California Trust Attorney can determine the facts of your case in order to see if there is undue influence. Many times, explains Brian D. Lerner, an heir is feeling like he or she got the short end of the stick due to the fact that there appears to be undue influence.
Brian Lerner, a California Trust Attorney, states that a presumption of undue influence exists if the following conditions are met: One set of arguments which you could show undue influence, explains the California Trust Attorney would be showing the following: A confidential relationship existed between the chief beneficiary and the testator; The provisions of the will are inconsistent with the testator’s intentions expressed before and after the will’s execution explains the California Trust Attorney; Brian Lerner states the next element would be the chief beneficiary’s relationship with the testator gave the former the opportunity to control the testamentary act; The testator’s mental or physical condition permitted a subversion of his or her free will; and finally explains the California Trust Attorney would be the chief beneficiary under the will was active in procuring it.
However, Brian Lerner, a California Trust Attorney explains that there is a second set of facts sufficient to raise a presumption of undue influence (separate from the first set of facts) which includes the following: The beneficiary’s active participation in procuring the will; A confidential relationship between the testator and beneficiary; and Undue benefit to the beneficiary under the will.
Brian Lerner, California Trust Attorney states that because this second set of facts is more concise and somewhat less burdensome to the party challenging the validity of the will, it is more frequently used to raise the presumption of undue influence. Either way, the California Trust Attorney must bring this matter to Court and must present the case with sufficient detail, evidence, witnesses and declarations in order to properly make the case that undue influence exists. By the same token, explains Brian D. Lerner, some heir or beneficiary who feels that they can prove undue influence, may be wrong. The California Trust attorney can be on both sides of matter. Brian Lerner states that the California Trust Attorney can argue with supporting evidence that there was undue influence, or conversely, argue that there was not undue influence.
Brian Lerner explains that there must be active procurement of a Will and that the California Trust Attorney must prove this by a combination of factors. It often is demonstrated by circumstantial evidence. Brian Lerner, California Trust Attorney states that the beneficiary’s presence at the execution of the will is not determinative. Evidence of circumstances before and after the will execution may be considered if it tends to show undue influence at the time of will execution. Note that the California Trust Attorney explains that the beneficiary’s presence at the execution of the will is not enough to prove active procurement of the will. There must be some evidence that the beneficiary influenced the actual dispositive provisions of the will. Conversely, Brian Lerner explains that the beneficiary’s absence at the execution of the will does not necessarily mean that he or she did not actively procure the will. For example, the California Trust Attorney states in one case, the beneficiary was a psychic who convinced the testator that she was in communication with the testator’s deceased relatives. Although the psychic was not present at the will execution, the court found that she had so completely subverted the testator’s will that it was not unreasonable to conclude that she had actively procured the Will explains Brian D. Lerner. Another case explains the California Trust Attorney is in which the court found that even though the beneficiary was not present at the will execution, he had actively procured the will by refusing to help the testator escape from Nazi Germany unless she made him her sole heir.
Generally, explains Brian D. Lerner, there must be a confidential relationship and the California Trust Attorney states that a confidential relationship exists when one person places trust and confidence in the integrity and fidelity of another.
Finally, explains Brian D. Lerner, California Trust Attorney, you would need to show an undue benefit and that bequeathing property to this particular person is ‘unnatural’. Whether a Will is “unnatural” and whether a beneficiary has unduly profited from a will are questions of fact to be determined in light of the testator’s lifetime experiences and values. Thus, explains the California Trust Attorney, undue influence and proving it are highly factual and individual in each particular case.