Undue Influence: Pressure Brought to Bear Directly on the Burden of Proof

• Publication year: 2020
• Author: By Bryan L. Phipps, Esq.*

UNDUE INFLUENCE: PRESSURE BROUGHT TO BEAR DIRECTLY ON THE BURDEN OF PROOF

By Bryan L. Phipps, Esq.*

I. INTRODUCTION

The burden of proof, and who has it, can often mean the difference between success or failure at trial. As explained in this article, for any civil or probate proceeding (including contests to wills or trusts) the default burden of proof is preponderance of the evidence. Analyzing case law to determine whether courts have modified the default burden of proof in undue influence cases from preponderance of the evidence to clear and convincing evidence is difficult, but worth the effort. While several noteworthy decisions purportedly stand for the proposition that clear and convincing evidence is required to invalidate a testamentary document on the basis of undue influence, a detailed analysis of the cases compels a different conclusion. This article suggests that these cases do not actually modify the burden of proof from preponderance to clear and convincing. Instead, the cases suggest that the burden of proof in undue influence cases should be the preponderance of the evidence—applied on a sliding scale, much like the sliding-scale approach used in determining the requisite level of capacity needed to execute a trust amendment.¹

II. DEFAULT RULES REGARDING BURDENS OF PROOF

Unless the Probate Code provides its own applicable rule, the rules of practice applicable to civil actions apply to and constitute the rules of practice in proceedings under the Probate Code.² The general rule in California is that issues of fact in civil actions are determined by a preponderance of the evidence.³ Since it became operative in 1967, Evidence Code section 115 has provided in pertinent part, "[e]xcept as otherwise provided by law, the burden of proof requires proof by a preponderance of the evidence."⁴ As referenced in Evidence Code section 115, "law" refers to "constitutional, statutory, and decisional law."⁵ Even prior to the enactment of Evidence Code section 115, as far back as 1861, the California Supreme Court stated, "[i]ssues of fact in civil cases are determined by a preponderance of testimony."⁶ Thus, except where the constitutional, statutory, or decisional law of California provides otherwise, issues of fact in proceedings under the Probate Code are determined by a preponderance of the evidence.

At trial, the party with the burden of proof must convince the trier of fact that its version of the facts is the true version. Because of this, the burden of proof associated with any particular claim has a tremendous impact on the likelihood of success for either party.

III. BURDEN OF PROOF REQUIRED FOR PROVING UNDUE INFLUENCE

A. Lack of Constitutional or Statutory Reference to Clear and Convincing Evidence

As noted, the default burden of proof in any probate proceeding is preponderance of the evidence, and this default burden can only be modified by constitutional, statutory, or decisional law.⁷ There is nothing to suggest that constitutional law dictates a higher standard of proof when seeking to invalidate a testamentary instrument on the basis of undue influence.

Similarly, as explained above, the statutory law does not dictate a higher standard of proof when seeking to invalidate a testamentary instrument on the basis of undue influence. It is worth noting that the Legislature has not been shy in requiring clear and convincing evidence in certain probate proceedings, such as:

• When the devolution of property depends upon priority of death;⁸
• When court authority is sought to sell a conservatee's present or former personal residence;⁹
• When the survivorship interests in a multi-party account are in dispute;¹⁰
• When the proponent of a will seeks to prove a will without two qualifying witnesses;¹¹
• When a party seeks to give effect to additions to or deletions from a California statutory will made on the face of the instrument;¹²
• When a party seeks to establish a person as a "natural parent" for purposes of intestate succession;¹³
• When the existence and terms of an oral trust of personal property are being established;¹⁴
• When a care custodian seeks to rebut the presumption of undue influence associated with a donative transfer; and ¹⁵
• When a party seeks to establish an agreement or promise to make a particular testamentary devise.¹⁶

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Despite these instances where the Legislature has required a higher evidentiary burden, the Legislature has not modified the Probate Code to require proof by clear and convincing evidence when determining whether a testamentary document is invalid on the basis of undue influence.¹⁷

Since neither constitutional law nor statutory law requires clear and convincing evidence for claims of undue influence, the final source for setting a higher degree of proof is case law. However, as stated by the California Supreme Court:

While it is clear that case law may, in some instances, suggest a higher burden of proof than preponderance of the evidence is required, we have stated as a general principle that "judicial expressions purporting to require clear and convincing [or clear and satisfactory] evidence must be read in light of the statutory provision for proof by a preponderance of the evidence...."¹⁸

With this in mind, neither the California Supreme Court nor any Court of Appeal has published a decision requiring clear and convincing evidence to prove undue influence for challenges to testamentary instruments.

B. Decisional Law Does Not Require Clear and Convincing Evidence

Concededly, certain appellate decisions have stated that undue influence in the execution of a testamentary instrument must be established by clear and convincing evidence.¹⁹ The most recent is Doolittle v. Exchange Bank.²⁰ The Doolittle court cites Conservatorship of Davidson as authority regarding the requisite burden of proof,²¹ and the Davidson court (in a footnote) cites to Estate of Truckenmiller.²² Truckenmiller, in turn, cites to Hansen v. Bear Film Company, Inc.²³ When this trail of citations is traced and the cases are analyzed, the proposition that clear and convincing evidence is required to prove undue influence unravels completely.

1. Doolittle v. Exchange Bank

In Doolittle, the trustee filed a petition for instructions seeking confirmation of the trustee's authority to expend trust funds to defend against a contest of the deceased settlor's trust.²⁴ The contesting beneficiary filed a competing petition for instructions, arguing that the provision relied upon by the trustee was, in effect, a no-contest clause, the enforcement of which was premature, and that the trustee could not rely upon the authority granted in the challenged amendment until the operative terms of the challenged instrument were determined through the underlying contest.²⁵ The trial court ruled in favor of the trustee and the contestant appealed.²⁶

On appeal, the principal issue was whether the provision in the trust instructing the trustee to defend against contests operated as a no-contest clause.²⁷ A related issue was whether the provision instructing the trustee to defend against contests was enforceable prior to the determination of the underlying challenge to the trust amendment containing the authorizing provision.²⁸ Finally, the court considered whether a separate document signed by the deceased settlor providing relevant "instructions" to the successor trustee was still operative and part of the terms of the trust.²⁹

On each of the three issues, the court affirmed the orders of the trial court.³⁰ When it discussed whether the provision authorizing the trustee to defend against contests was enforceable prior to the determination of the underlying contest, the court recognized that there was some merit to the contestant's position: "There is some logic to [the contestant's] contention that since the validity of the amendment conferring the trustee with the authority to defend her claims is the very subject of the litigation and has not yet been adjudicated, enforcement of the defense directive should await the outcome of the litigation."³¹ In support of her position, the contestant asserted that the issue was analogous to that of a nominated executor of a contested will who may not use estate assets to defend against the contest until it has been resolved and the will admitted to probate.³² The court, however, distinguished the will scenario from the one presented within a trust administration on the basis that an executor of a will "has neither authority nor responsibility to carry out the terms of a will until the will has been admitted to probate[,] ... whereas, as pointed out above, the trustee under an inter vivos trust has such authority once assuming the position of trustee."³³

It was within this vein of analysis that the Doolittle court noted, "[a] person challenging the validity of a trust instrument on the grounds that the trustor lacked capacity to execute the document or did so under the undue influence of another carries the heavy burden of proving such allegations."³⁴ The court then referred to the rebuttable presumption of capacity applicable to trust contests based on incapacity, as well as to the potential for an "exceptionally low" mental capacity standard under Andersen v. Hunt.³⁵ Then, almost nonchalantly, the Doolittle court continued, "[s]imilarly, 'the party contesting a testamentary disposition bears the burden of proving undue influence' and '[u]ndue influence must be proven by clear and convincing evidence.'"³⁶ The Doolittle court ultimately held that a trust "should ordinarily be administered according to its terms unless and until the party challenging its validity sustains its heavy burden of proof."³⁷

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No issue related to the adjudication of the underlying trust contest, including the contestant's burden of proof for her claims of undue influence, was before the Doolittle court. Indeed, the underlying trust contest had yet to be decided on its merits.³⁸

2. Conservatorship of Davidson

Conservatorship of...