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

including an actual showing that improper influence was exerted and a disposition that would not
have been made absent the influence. 52
1. Presumption Model
Generally the contestant of a will has the burden of proving undue influence. If a
presumption of undue influence applies, however, the burden of proof shifts to the proponent to
show the absence of undue influence. 53
Based on the law in the majority of states, the
presumption of undue influence is created when:
(1) There is a confidential relationship between the testator and the beneficiary;
(2) The beneficiary actively participated in procuring or executing the testamentary
document; and
(3) The beneficiary unduly benefited from the testamentary document.
Under (1), a confidential relationship is one where the person has the confidence of
another and purports to act or advise another. 54
Said another way, a confidential relationship
“exists whenever trust and confidence is reposed by one person in the integrity or fidelity of
another.” 55 This can be established with or without a technical fiduciary relationship. 56
Whether
or not the testator and alleged influencer have a confidential relationship is a question of fact,
and must be determined on a case-by-case basis.
52 Id.
53 Estate of Auen (1994) 30 Cal.App.4 th 300.
54 Kudokas v. Balkus (1972) 26 Cal.App.3d 744.
55 California Jury Instruction §334.
56 Birkel, Julia L., Byrne, John M., Bernatz, Dr. Susan I., Litigating Financial Elder Abuse Claims, Los Angeles
Lawyer, October 2007.
61