Undue Influence: Definitions and Applications - California Courts ...

Civil Code §1575 also describes a presumption of undue influence when fiduciary or
confidential relationships exist and when perpetrators participate in obtaining an undue profit or
unfair advantage over the elders. A long line of California cases has held that a presumption of
undue influence is created when there is a confidential relationship between the testator and the
influencer, a transfer for no consideration, an opportunity to exert undue influence, a particular
susceptibility to undue influence on the part of the transferor, and an undue benefit to the party
who participated in the transfer (Ross v Conway (1892) 92 Cal.632, 635) Confidential
relationships can be established by the close proximity of the perpetrator to the elderly victim,
and may include caregivers, nurses, friends, or relatives.
California’s “prohibited transfers statute” (Probate Code §21350) creates a presumption
of undue influence that prevents certain professionals from inheriting assets from clients unless
they can demonstrate that they didn’t use fraud, menace, duress, or undue influence to get them.
The presumption also covers “care custodians,” and specifies that those who receive last-minute
bequests from dependent adults are presumed to have exercised undue influence, even if they
were close friends of the deceased. There are several exceptions, including gifts to family
members and gifts that have been reviewed by independent attorneys who certify that the gifts
were not the product of menace, duress, fraud, or undue influence.
The prohibited transfers statute was originally enacted in response to a high- profile case
involving an estate-planning attorney who named himself and members of his family as
fiduciaries for, and beneficiaries of, clients’ estates. Hence, law firms, lawyers, and employees of
law firms associated with them are included in the list of people who cannot inherit unless they
can prove that transfers weren't the product of fraud, menace, duress, or undue influence.
The presumption also applies to “care custodians,” which has prompted debate and
controversy about what constitutes a care custodian. Bernard v. Foley involved 97-year-old
Carmel Bosco, who left her half million-dollar estate to two friends who cared for her during the
last months of her life. While under their care, Bosco amended her living trust several times,
giving more each time to the caregivers until, a few days before her death, she made them the
beneficiaries of her entire estate. Bosco’s family, the original beneficiaries, sued, claiming that
the caregivers had exerted undue influence over Bosco while she was gravely ill and heavily
sedated. The case focused on whether the friends were in fact “care custodians,” and therefore,
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