Although a lot of focus has been placed on "undue influence," some other grounds for challenging a Will include fraud, duress, menace, or mistake. The purpose of this post isn't to delve into particulars of each one but simply to make you aware of their existence. It's important to remember that under California Probate Code Section 6104, "[t]he execution or revocation of a will or a part of a will is ineffective to the extent the execution or revocation was procured by duress, menace, fraud, or undue influence."

Mistakes in Wills vs. Trusts

Mistakes are treated differently depending on whether they are present in a Will or Trust document.

When there's a substantial mistake of fact or law, a trust may be rescinded. On the other hand, if a Will as a whole is executed with testamentary intent, it can't be overturned on the basis of mistake.

In case you're not sure what a "mistake" is in the estate planning context, here are some examples. A mistake could be one where you didn't realize the effect of what was written in the Will or Trust. Alternatively, a mistake could be more technical in the sense that you didn't know the proper steps required to properly sign your estate planning documents. Still, another form of mistake might simply be a typo that has a substantial unintended effect on the distribution of your assets.

That being said, an experienced litigator in the trust and estates field may leverage one or more of these methods of attacking a Will or Trust, depending on the facts presented.

In California, generally the contestant (the person challenging the Will) bears the burden of proving that there was undue influence. However, the proponent of the Will has the burden of proof where he or she is a prohibited transferee under California Probate Code Section 21380.

 A contestant, however, may shift the burden of proof if he or she can show the following:

1. The existence of a confidential relationship between the testator and the person alleged to have exerted undue influence;
2. That person's active participation in procuring the instrument; and
3. Undue profit.

Given the high threshold, the person who challenges a Will or other testamentary instrument may have a difficult time collecting the evidence to successfully win a contest. 

Unfortunately, a practical reality faced by many potential contestants is that the dollar amounts at issue may not justify the expense of hiring a lawyer to go to court over the matter.  That being said, an experienced lawyer who specializes in these types of cases, would be in the postition be to help you evaluate whether this is an avenue worth pursuing.   

Figuring out whether a client has been unduly influenced can be challenging for an estate planning lawyer.

As an initial matter, we must first be able to identify the problem. This can be difficult if another family member or 3rd party is threatening harm (physical or otherwise) if the client breaks his or her silence about being pressured.

Other times, it is the family member or friend that introduces the client to the estate planning lawyer, and the client feels pressured to allow the family member or friend to participate in the estate planning process. This is further compounded the dilemma that even if the lawyer is able to isolate the client, having a friend of family member sitting outside of the room, may be enough for the client to feel pressure. 

Warning Signs

Other telltale signs of undue influence can be assertions by the client of dishonest family members or allegations of theft. However, many times these thoughts are a result of seeds planted in the mind of the client from unscrupulous family members.

Another warning sign is if the client switches lawyers. Depending on how long he or she has been with the prior estate planning lawyer, there may be more or less of a reason to think there's been undue influence.

Dilemma

Even if the estate planning lawyer catches wind that the client is being unduly influenced, what is the practitioner to do?

On the one hand, the lawyer doesn't want to participate in helping further the undue influence. Therefore, the estate planning lawyer may decline to represent the client.

On the other, if the lawyer does nothing, is he or she essentially helping to perpetuate the undue influence? What if the client is forced to find someone else who is less perceptive of the existence of undue influence (or if the client and his "friend" have refined their story as a result of speaking with the estate planning lawyer to evade detection)?

Evidence

Even if the lawyer ultimately determines that there is no undue influence, there's always the challenge of documenting evidence to that effect. After the passage of time, the beneficiaries may look back at the estate planning documents with a different set of eyes and perceive instances of undue influence where none actually existed. 

All of these factors make estate planning challenging not only for clients with good intentions, but also for lawyers who sincerely want to do what is in the client's best interest.

Sometimes California law presumes that a gift or transfer stated within estate planning documents was a result of undue influence. Generally, there are two categories of transfers where there may be a presumption of undue influence:

1. Transfers to people involved in the writing of your estate planning documents (and related people) and
2. Transfers to care custodians of dependent adults.

California Probate Code Section 21380

Probate Code Section 21380 lays out the law regarding transfers that are presumed to be a product of fraud or undue influence:

(a) A provision of an instrument making a donative transfer to any of the following persons is presumed to be the product of fraud or undue influence:

(1) The person who drafted the instrument.

(2) A person who transcribed the instrument or caused it to be transcribed and who was in a fiduciary relationship with the transferor when the instrument was transcribed.

(3) A care custodian of a transferor who is a dependent adult, but only if the instrument was executed during the period in which the care custodian provided services to the transferor, or within 90 days before or after that period.

(4) A person who is related by blood or affinity, within the third degree, to any person described in paragraphs (1) to (3), inclusive.

(5) A cohabitant or employee of any person described in paragraphs (1) to (3), inclusive.

(6) A partner, shareholder, or employee of a law firm in which a person described in paragraph (1) or (2) has an ownership interest.

(b) The presumption created by this section is a presumption affecting the burden of proof. The presumption may be rebutted by proving, by clear and convincing evidence, that the donative transfer was not the product of fraud or undue influence.

(c) Notwithstanding subdivision (b), with respect to a donative transfer to the person who drafted the donative instrument, or to a person who is related to, or associated with, the drafter as described in paragraph (4), (5), or (6) of subdivision (a), the presumption created by this section is conclusive.

(d) If a beneficiary is unsuccessful in rebutting the presumption, the beneficiary shall bear all costs of the proceeding, including reasonable attorney’s fees.

Exceptions

There are, however, exceptions to this presumption, even where a gift is made to a person who drafted the estate planning document in question or to a care custodian of a dependent adult. These can be found in California Probate Code Section 21382:

Section 21380 does not apply to any of the following instruments or transfers:

(a) A donative transfer to a person who is related by blood or affinity, within the fourth degree, to the transferor or is the cohabitant of the transferor.

(b) An instrument that is drafted or transcribed by a person who is related by blood or affinity, within the fourth degree, to the transferor or is the cohabitant of the transferor.

(c) An instrument that is approved pursuant to an order under Article 10 (commencing with Section 2580) of Chapter 6 of Part 4 of Division 4, after full disclosure of the relationships of the persons involved.

(d) A donative transfer to a federal, state, or local public entity, an entity that qualifies for an exemption from taxation under Section 501(c)(3) or 501(c)(19) of the Internal Revenue Code, or a trust holding the transferred property for the entity.

(e) A donative transfer of property valued at five thousand dollars ($5,000) or less, if the total value of the transferor’s estate equals or exceeds the amount stated in Section 13100.

(f) An instrument executed outside of California by a transferor who was not a resident of California when the instrument was executed.

The most relevant of these exceptions are likely to be parts (a) and (b), which carves out an exception for when the recipient of the gift is a close relative of the person making the gift.

Certificate of Independent Review

Finally, if are concerned that a gift that you want made in your estate planning documents may later be attacked for a reason mentioned above, you may be directed to obtain a "Certificate of Independent Review" from a separate attorney to certify that your intended gift is not the result of undue influence.

Although laws aren't perfected, they are often intended to protect us when we are most vulnerable. Gifts made to the person who is drafting our estate planning documents or gifts to caretakers of dependent adults are two such scenarios where you might be acutely susceptible to excessive pressure.