Undue Influence and Flipping the Burden of Proof

My name is Matthew Talbot and I am an an elder law attorney in Walnut Creek. I handle elder abuse cases and today what I want to talk about is “flipping the burden of proof”. This is an extremely important topic in elder abuse cases because if there is anyone trying to say that a document, will or trust is invalid due to the undue influence of somebody else (the abuser), then that person who is making those allegations has to prove undue influence. That can be difficult at times because undue influence usually happens behind closed doors. It tends not to be written down and there is not a lot of evidence to prove it, so one tool in the arsenal of someone who is trying to prove undue influence is to “flip the burden”. Instead of the person making the allegations having to prove undue influence the alleged abuser has to disprove undue influence and show that it was signed with the free will of the decedent (the dead person) who executed the document. This can be tough to do, so flipping the burden is huge. This comes out of a case called the Estate of Mann and there is a three factor test that you have to look at to determine whether or not someone can flip the burden. The first factor is determined if the alleged abuser was in a confidential relationship with the alleged victim. A confidential relationship can be hard to define, because you want to look to see if they were in a fiduciary relationship. If they were in a caregiving relationship, or if they were close family members, like a
father daughter relationship or a brother sister relationship this can be a part of a confidential relationship. If that factor is met then the second factor is whether or not the victim actively assisted in the securing and drafting of the document. What that means is if the abuser drafted the document for the victim or helped draft the document for the victim then the second factor would be met. There is some case law that says that the abuser drove the victim to the lawyer and then sat there while the lawyer did everything. In that case then that would not necessarily meet the second factor. So these are very fact intensive and it depends how active the abuser was in organizing, drafting, and procuring this controversial document. And the last factor is the inequity of the result Basically, this means how fair or unfair was the result, and was there an undue benefit for somebody? So if there are four kids and maybe normally the estate goes to the four kids equally that would be a natural distribution. But if one of the kids drafted a will for mom or took mom to the lawyer and that kid inherited the entire estate that could be viewed as inequitable. Now of course if three of those kids moved out of state and one kid stayed with mom and took care of her while she was dealing with cancer then that may not be inequitable, so you really have to look at the evidence to determine if this is an undue benefit. So those are the three factors: confidential relationship, actively procured document and undue benefit. If the person alleging undue influence can prove these factors then the burden of proof is flipped and the alleged abuser has to disprove undue influence. This is very complicated and difficult. I have tried to break it down from the layman’s perspective, but if you believe that there has been undue influence or you are concerned that someone is under the undue influence of somebody else do not hesitate to contact your attorney to make sure to insure that someone’s rights are fully represented at all times.