Trust and Probate Challenges: Minimizing and Litigating Claims of Undue Influence, Fraud, Capacity and Mistakes Overcoming Evidentiary Hurdles with Medical Records, Documentation, Experts and Other Witnesses

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THURSDAY, JANUARY 16, 2014

Presenting a live 90-minute webinar with interactive Q&A

James A. Bush, Of Counsel, Van Dyke & Associates, San Diego

Anthony R. La Ratta, Partner, Archer & Greiner, Haddonfield, N.J.

J. Brian Thomas, Attorney, Burdette & Rice, Dallas

TRUST AND PROBATE CHALLENGES:

MINIMIZING AND LITIGATING CLAIMS OF

UNDUE INFLUENCE, FRAUD,

CAPACITY, AND MISTAKES

Part One: Substantive Bases for Will and Trust Document Litigation1

James A. Bush, Esq.

Van Dyke & Associates, APLC

501 W. Broadway, Suite 1600

San Diego, CA 92101-8474

(619) 344-0977

jbush@vdalaw.com

1 The law on this subject tends to be based on common law principles that are observed in

most states rather than laws unique to a particular state. Because the presenter is based in

California, and for convenience, citations from California law usually are used without an

attempt to cite consonant authorities from other states.

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I. Bases to judicially challenge a testamentary document include:

A. Lack of Capacity

B. Undue Influence

C. Fraud

D. Mistake

II. Lack of Capacity

A. Generally, persons over the age of majority and with legal capacity may

dispose of their property as they wish without regard to the desires,

expectations, or opinions of anyone else as long as the terms and conditions of

distribution are not prohibited by law or public policy. Estate of Markham, 46

Cal. App. 2d 307, 314, 115 P.2d 866, 869-70 (1941).

B. A person over the age of majority is presumed to have capacity to execute a

will or trust, and anyone challenging this presumption has the burden of

proving otherwise. Estate of Mann, 184 Cal. App. 3d 593, 602, 229 Cal. Rptr.

225, 229 (1986).

C. Capacity is determined as of the date that the relevant document is executed.

See, Andersen v. Hunt, 196 Cal. App. 4th

722, 727, 126 Cal. Rptr. 3d 736, 739

(2011); Estate of Mann, 184 Cal. App. 3d 593, 602, 229 Cal. Rptr. 225, 229

(1986).

D. Although capacity is determined as of the date the relevant document is

executed, proof can be offered of incompetency at earlier or later dates. Estate

of Mann, 184 Cal. App. 3d 593, 602, 229 Cal. Rptr. 225, 229 (1986).

E. Generally, transferors have testamentary capacity when they can understand

the nature of the act they are doing; they understand and recall the nature and

situation of their property; and they know, and understand their relationship to,

the natural objects of their bounty and the persons affected by the relevant

document. Andersen v. Hunt, 196 Cal. App. 4th

722, 727, 126 Cal. Rptr. 3d

736, 739 (2011); Estate of Mann, 184 Cal. App. 3d 593, 602, 229 Cal. Rptr.

225, 229 (1986).

1. California embodies such capacity in Cal. Probate Code § 6100.5(a)(1).

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F. Transferors also lack testamentary capacity where they have such broad

insanity as to constitute mental incompetency generally or have some mental

disorder, hallucination, or delusion that causes them to distribute their property

in a way that, but for the disorder, hallucination, or delusion, they would not

have done. Estate of Perkins, 195 Cal. 699, 703-04, 235 P. 45, 47 (1925).

1. See Cal. Probate Code § 6100.5(a)(2).

2. Cal. Probate Code §§ 810(c) and 811(a) provide that a determination

that a person lacks capacity should be tied to evidence of at least one of

certain enumerated deficits in mental function and a correlation between

that deficit and the decision or act in question.

G. That a person is the subject of a guardianship or conservatorship does not

conclusively establish that such person lacks testamentary capacity (although it

may be some evidence of a lack of capacity), especially where there is

evidence that the person’s mental condition has improved since the

appointment of a guardian or conservator. Estate of Mann, 184 Cal. App. 3d

593, 604-05, 229 Cal. Rptr. 225, 230-31 (1986).

H. The capacity required to make an irrevocable trust, rather than a revocable trust

or a will (which is always revocable until the testator dies) may be more

stringent. “A person lacking capacity to make an ordinary transfer of property

has no capacity to create an inter vivos trust. (Rest.2d Trusts, §§ 19, 333 (see

comment f, p. 151); 3 Scott on Trusts (2d ed.) § 333.2, p. 2425; Bogert on

Trusts (2d ed.) § 997, p. 450 et seq.).” Walton v. Bank of California, N.A., 218

Cal. App. 2d 527, 541, 32 Cal. Rptr. 856, 865 (1963).

I. If testamentary incapacity has been determined at any particular point in time

due to senile dementia, there is a strong inference that such incapacity

continued thereafter because such dementia is continuous and becomes

progressively worse. Estate of Mann, 184 Cal. App. 3d 593, 602, 229 Cal.

Rptr. 225, 229 (1986).

J. But if a transferor has a mental disorder during which he or she has lucid

periods (including early stages of dementia), “it is presumed that his [or her]

will has been made during a time of lucidity. . . . Thus, a finding of

testamentary incapacity can be supported only if the presumption of execution

during a lucid period is overcome.” Estate of Mann, 184 Cal. App. 3d 593,

604, 229 Cal. Rptr. 225, 230 (1986).

K. Other common circumstances that may bear on questions of incapacity but

which do not alone conclusively establish incapacity are as follows:

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1. “It is well established that ‘old age or forgetfulness, eccentricities or

mental feebleness or confusion at various times of a party making a will

are not enough in themselves to warrant a holding that the testator

lacked testamentary capacity.’” Andersen v. Hunt, 196 Cal. App. 4th

722, 727, 126 Cal. Rptr. 3d 736, 739 (2011) (quoting Estate of Wynne

239 Cal. App. 2d 369, 374, 48 Cal. Rptr. 656 (1966)).

a. But an irrational belief that has not even a semblance of facts to

support it may be sufficient to establish incapacity where the

irrational belief affected the provisions of the decedent’s will.

Estate of Mickelson, 37 Cal. App. 2d 450, 454-55, 99 P.2d 687,

689 (1940) (where unsubstantiated delusion was that testator’s

wife had been unfaithful and their child was born out of

wedlock).

2. Addiction to, or heavy use of, intoxicants alone is not enough to

establish incapacity. Estate of Garvey, 38 Cal. App. 2d 449, 456-57,

101 P.2d 551, 554-55 (1940).

3. That the decedent committed suicide does not alone destroy

testamentary capacity, even where the decedent’s will unquestionably

was written in contemplation of suicide. Estate of Rich, 79 Cal. App. 2d

22, 30, 179 P.2d 373, 378 (1947).

L. The terms of the testamentary document itself may be considered in

determining whether there was incapacity. “[W]here a man wills all or

most all his property away from his wife or children with whom he has

lived on apparently friendly terms, that fact has weight in determining the

mental condition of the testator. And if a man has lived in apparently the

most affectionate relations with his family, and leaves a will in which his

property is given to others, and no reason is suggested or explanation made

why they are thus disinherited, . . . ‘this circumstance could certainly tend

to show delusion or alienation of reason at the time of the testamentary

act.’” Estate of Martin, 170 Cal. 657, 663-64, 151 P. 138, 141 (1915)

(citation omitted).

M. Generally, a finding of incapacity invalidates the entire testamentary

document. If the transferor lacked capacity to make one part of the relevant

document, such incapacity presumably would apply to the entire document.

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III. Undue Influence

A. Undue influence is a sufficient ground to set aside a trust or will where

influence used on the transferor directly procures the challenged document and

such influence “amounts to coercion destroying free agency on the part of the

testator. . . . There must be proof of ‘a pressure which overpowered the mind

and bore down the volition of the testator at the very time the will was made.”

Estate of Mann, 184 Cal. App. 3d 593, 606, 229 Cal. Rptr. 225, 231 (1986).

1. To set aside a testamentary document on this ground, it is not enough

that a transferee exercised influence on the transferor. Anyone may

solicit a distribution from a transferor. To invalidate the document, the

influence must be undue, i.e., it must include some conduct that causes

the transferor to make a disposition of property different from that

which such person would have made of his or her own free will. Estate

of Baker, 131 Cal. App. 3d 471, 480, 182 Cal. Rptr. 550, 556 (1982).

2. Neither influence generally (no matter how strong) nor opportunity and

a motive to influence is sufficient to support a claim of undue influence.

It must be shown that influence was actually used to bring about the

challenged transfer in favor of the influencer. Estate of Kreher, 107

Cal. App. 2d 831, 839, 238 P.2d 150, 156 (1951).

B. Undue influence often comes about because of false statements by the

influencer about the contestant, but that is not required. The influencer’s

making of completely true statements about the contestant may still result in

undue influence where the transferor’s will is overborne by the influencer’s

conduct. Hagen v. Hickenbottom, 41 Cal. App. 4th 168, 182, 48 Cal. Rptr.2d

197, 205 (1995).

C. Unlike lack of capacity which normally infects the entire challenged document,

a finding of undue influence may require a voiding of only that part of the

document found to be the result of such undue influence, leaving the remainder

to stand if “it is not inconsistent with and can be separated from the part which

is invalid.” Estate of Molera, 23 Cal. App. 3d 993, 1001, 100 Cal. Rptr. 696,

701 (1972).

D. As with lack of capacity, the contestant alleging undue influence initially has

the burden of proving such defect in the challenged testamentary document.

E.g., Cal. Probate Code § 8252(a).

E. But the burden can shift. At least in cases of wills and revocable trusts, there is

a presumption of undue influence where: (1) There existed a confidential

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relationship between the transferor and the transferee; (2) that transferee

actively participated in procuring the execution of the testamentary document;

and (3) that transferee unduly profits by the testamentary document. If the

presumption arises, then the transferee has the burden of showing that the

testamentary document was freely made by the transferor. Estate of Mann, 184

Cal. App. 3d 593, 606, 229 Cal. Rptr. 225, 232 (1986).

F. The burden may shift even more easily in cases of irrevocable inter vivos

trusts. “While no presumption of undue influence is indulged in upon the

contest of a will unless confidential relations are first established, with respect

to gifts or conveyances inter vivos the susceptibility to imposition, the extreme

age and infirmity of the grantor, together with slight evidence of circumstances

from which it may be inferred that the instrument was the product of coercion,

will suffice to shift the burden and require the beneficiary to show

affirmatively that the transaction was fair and free from influence.” O'Neil v.

Spillane (1975) 45 Cal. App. 3d 147, 155, 119 Cal.Rptr. 245, 252 (1975).

1. Spillane applied Cal. Civil Code § 1575 to an inter vivos gift deed. That

statute, which applies outside the context of will contests in California,

defines “undue influence” as: “1. In the use, by one in whom a

confidence is reposed by another, or who holds a real or apparent

authority over him, of such confidence or authority for the purpose of

obtaining an unfair advantage over him; 2. In taking an unfair advantage

of another's weakness of mind; or, 3. In taking a grossly oppressive and

unfair advantage of another's necessities or distress.”

G. Presumption of Undue Influence

1. Confidential Relationships

a. Whether a confidential relationship exists is usually a question of

fact to be determined on a case-by-case basis. O'Neil v. Spillane

(1975) 45 Cal. App. 3d 147, 153, 119 Cal. Rptr. 245, 250 (1975).

b. A confidential relationship exists whenever the transferor places

trust and confidence in the integrity and fidelity of another

person. Estate of Rugani, 108 Cal. App. 2d 624, 630, 239 P.2d

500, 504 (1952).

c. Some relationships are deemed as a matter of law to be such that

any testamentary disposition to a person in the relationship is

presumed to be the result of undue influence. For example, in

California:

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1) Transfers to certain care custodians, persons in a fiduciary

relationship with the transferor who also transcribed the

instrument or caused it to be transcribed, and persons

related to or employed by or cohabiting with care

custodians or such fiduciaries are presumed to have

obtained the transfers by fraud or undue influence, which

presumption can be overcome but only by clear and

convincing evidence. Cal. Probate Code § 21380(a) and

(b). (Persons who are related by blood to the transferor

are exempt from these presumptions. Cal. Probate Code

§ 21382. Also, persons for whom a written certificate of

independent review is executed in a prescribed form by an

attorney who counsels the transferor outside the presence

of the beneficiary about the nature and consequences of

transfer and attests that the transfer is not the product of

fraud or undue influence are exempt from these

presumptions. Cal. Probate Code § 21384.)

2) Transfers to the person who drafted the testamentary

document, relatives of such person, employees and

cohabitants of such person, and partners and shareholders

and employees of a law firm in which such person has an

ownership interest are conclusively presumed to have

obtained by fraud or undue influence. Cal. Probate Code

§ 21380(a) and (c). (Again, persons who are related by

blood to the transferor are exempt from the presumptions,

Cal. Probate Code § 21382, as are persons for whom an

appropriate certificate of independent review by an

attorney is executed. Cal. Probate Code § 21384.)

3) California law usually requires a will to be attested to by

two subscribing witnesses. Where a subscribing witness

also receives a devise under the will (other than in a

purely fiduciary capacity), it is rebuttably presumed that

such witness obtained the devise through duress, menace,

fraud, or undue influence unless there are at least two

other, disinterested, subscribing witnesses to the will.

4) Where a person with an interest in an instrument that

makes a donative transfer physically signs the document

on behalf of the transferor, such signature is presumed

invalid unless the signer proves that the transferor

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intended to have the signer sign his or her name purely as

a mechanical act on behalf of the transferor. Estate of

Stephens, 28 Cal. 4th 665, 677-78, 122 Cal. Rptr. 2d 358,

367, 49 P.3d 1093, 1100-01 (2002).

5) Where the presumptions in the preceding paragraphs do

not arise, a contestant may still allege and prove that the

transfer was the product of undue influence. The

contestant simply would not have the benefit of the

presumption in such a case.

2. Transferee’s participation in procuring document.

a. A challenged transferee was found to have participated in

procuring the challenged document where the challenged

transferee was present when the will was executed, the transferee

gave the decedent pen, ink and paper, the decedent then wrote the

will and immediately gave it to the challenged transferee, and the

challenged transferee then took it to his own attorney (whom the

decedent did not know). Estate of Garibaldi, 57 Cal. 2d 108,

113, 17 Cal. Rptr. 623, 626, 367 P.2d 39, 42 (1961).

b. But “’[T]he mere fact of the beneficiary procuring an attorney to

prepare the will is not sufficient “activity” to bring the

presumption into play . . .; or selection of attorney and

accompanying testator to his office . . .; or mere presence in the

attorney’s outer office; . . . or presence at the execution of the

will . . .; or presence during the giving of instructions for the will

and at its execution . . . .’” Estate of Mann, 184 Cal. App. 3d

593, 608, 229 Cal. Rptr. 225, 233 (1986).

c. It also is not inappropriate for a challenged transferee to have

encouraged the transferor to make a testamentary document

where the challenged transferee did not urge any particular

disposition of the subject property. See Estate of Mann, 184 Cal.

App. 3d 593, 608, 229 Cal. Rptr. 225, 233 (1986).

d. The fact that the challenged transferee took the transferor to the

transferee’s own attorney also is insufficient to establish that the

transferee participated in procuring the document unless the

choice to use that attorney was obtained by deception. Estate of

Beckley, 233 Cal. App. 2d 341, 348, 43 Cal. Rptr. 649, 654

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(1965); Estate of Mann, 184 Cal. App. 3d 593, 608, 229 Cal.

Rptr. 225, 233 (1986).

3. Undue profit.

a. A will or codicil may give an undue benefit where “the will was

unnatural.” Estate of Mann, 184 Cal. App. 3d 593, 606, 229 Cal.

Rptr. 225, 232 (1986).

b. Whether a benefit is undue or unnatural is usually a question of

fact focused on the relationship between the transferor and the

relevant parties, and circumstances that may be considered

include dispositional provisions in prior versions of the estate

plan, past expressions of the decedent's testamentary intentions,

and the extent to which the relevant parties would benefit in the

absence of the challenged document. Estate of Sarabia, 221 Cal.

App. 3d 599, 607-08, 270 Cal. Rptr. 560, 564-65 (1990).

c. It is not unnatural to provide for “one who has had a particularly

close relationship with, or cared for the testator, or is in

comparatively greater need of financial assistance.” Estate of

Mann, 184 Cal. App. 3d 593, 607, 229 Cal. Rptr. 225, 232 (1986)

4. Absence of any of the foregoing factors needed to shift the burden of

proof does not preclude a finding of undue influence. Such absence

merely leaves the burden of proof with the claimant.

H. Mental state of the transferor

1. Undue influence does not require a showing that the transferor lacked

capacity to make the challenged document, and undue influence may be

found even if the transferor had no reduced capacity of any kind.

2. But the reality is that “in nearly every case where a will has been set

aside as the result of undue influence . . . there has existed the element

of a mind and will weak or for some reason impaired.” Estate of

Anderson, 185 Cal. 700, 708, 198 P. 407, 410 (1921).

3. The transferor’s state of mind is often a relevant factor because a person

in a weakened state of mind (which could be due to any number of

factors, including some form of senility or dementia, physical or mental

illness, medications, alcohol or drug use, loneliness, dependence on

others for physical or financial care, death of a loved one, divorce, etc.)

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may be more susceptible to subversion of his or her free will. See

Estate of Yale, 214 Cal. 115, 122, 4 P.2d 153, 156 (1931); Estate of

Anderson, 185 Cal. 700, 707-08, 198 P. 407, 410 (1921).

I. Recent Developments

1. Effective January 1, 2014, California has adopted some new statutes

that provide further definition of what constitutes undue influence and

which statutes “supplement” the common law.

2. Cal. Probate Code § 86 now states that “Undue influence” has the same

meaning as in Cal. Welfare & Institutions Code § 15610.70 and that

“the intent of the Legislature [is] that this section supplement the

common law meaning of undue influence without superseding or

interfering with the operation of that law.”

3. If the new statutes only supplement the common law without

superseding or interfering with it, does this mean that the new statutes

only explain what already was the common law and can therefore be

used in any case (whether already pending or filed hereafter) in any

state following the common law of undue influence?

4. Cal. Welfare & Institutions Code § 15610.70(a) defines “Undue

influence” generally as “excessive persuasion that causes another person

to act or refrain from acting by overcoming that person’s free will and

results in inequity.” This sounds much like the common law.

a. The “results in inequity” may not be required to prove undue

influence under the common law. Section 15610.70(b) expressly

provides that proof of an inequitable result is not alone enough to

establish undue influence.

5. Cal. Welfare & Institutions Code § 15610.70(a)(1)-(4) go on to

enumerate factors to be considered in determining whether there has

been undue influence, “all [of which] shall be considered.” They

include:

a. The victim’s vulnerability, evidence of which may include

“incapacity, illness, disability, injury, age, education,

impaired cognitive function, emotional distress, isolation, or

dependency, and whether the influencer knew or should have

known of the alleged victim's vulnerability.”

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b. The influencer's apparent authority, evidence of which may

include “status as a fiduciary, family member, care provider,

health care professional, legal professional, spiritual adviser,

expert, or other qualification.”

c. The influencer’s conduct, evidence of which may include

“(A) Controlling necessaries of life, medication, the victim's

interactions with others, access to information, or sleep;

(B) Use of affection, intimidation, or coercion; (C) Initiation

of changes in personal or property rights, use of haste or

secrecy in effecting those changes, effecting changes at

inappropriate times and places, and claims of expertise in

effecting changes.”

d. The equity of challenged result, evidence of which may

include “the economic consequences to the victim, any

divergence from the victim's prior intent or course of conduct

or dealing, the relationship of the value conveyed to the value

of any services or consideration received, or the

appropriateness of the change in light of the length and nature

of the relationship.

6. Whether or not the foregoing is controlling in any particular estate

planner’s jurisdiction, there would not appear to be any harm in

considering the above factors when considering whether drafting any

particular document might run afoul of undue influence law, and

someone litigating the validity of an estate plan could argue that these

factors are all part of the overall circumstances that a court generally

considers when deciding a claim of undue influence.

IV. Fraud

A. Although evidence of fraudulent conduct may support a claim of undue

influence (such as where the challenged beneficiary uses fraudulent

misrepresentations to unduly influence the transferor to favor the challenged

transferee over the contesting party), fraud may be a separate basis on which to

void a testamentary document.

B. As with undue influence, fraud may be a basis on which to void an entire

testamentary document or, alternatively, only that portion that was procured by

fraud where such portion can be severed from the remainder. Estate of

Carson, 184 Cal. 437, 441, 194 P. 5, 8 (1920).

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C. Fraud is similar to undue influence. The key difference is that in fraud cases,

transferors may have been acting of their own free will but were deceived into

doing something they would not have done but for the fraudulent

misrepresentations. Estate of Newhall, 190 Cal. 709, 718, 214 P. 231, 235, 28

A.L.R. 778 (1923).

D. Fraud also requires proof that the alleged fraudfeasor intended to deceive the

transferor or intended to induce the transferor to execute the testamentary

document. Estate of Newhall, 190 Cal. 709, 719, 214 P. 231, 235, 28 A.L.R.

778 (1923).

E. The contestant alleging fraud also must prove that such fraud was present when

the testamentary document was executed, either by showing that the fraudulent

conduct was engaged in at the time the document was made or that it was

engaged in at some earlier time and that the transferor’s belief in it persisted

through the time the document was executed. Estate of Newhall, 190 Cal. 709,

722, 214 P. 231, 236, 28 A.L.R. 778 (1923).

V. Mistake

A. Mistake is not often used as a ground to void or reform a testamentary

document, but there are a few instances where it is used.

B. For example, in a case where drafting errors in the relevant documents led to

ambiguities in an estate plan, a court held that the equitable common law

power of a court could be used to reform a trust agreement based on mistake

but could not be used to create a new trust agreement. Ike v. Doolittle, 61 Cal.

App. 4th 51, 85, 70 Cal. Rptr. 2d 887, 908-09 (1998).

C. But other authority holds that, if a will by mistake omits a devise that the

testator intended to make, such omission cannot be cured under the mistake

doctrine because to do so would be to make a new will, not to merely cure

some ambiguity. In re Page's Trusts, 254 Cal. App. 2d 702, 719, 62 Cal. Rptr.

740, 752 (1967).

D. Where a transferor through mistake signs the wrong document or signs a

document that differs materially from what he or she believed it to contain,

such document may be set aside on the grounds of mistake. See generally 79

Am. Jur. 2d Wills §§ 415-20.

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VI. Effect Of Setting Aside A Testamentary Instrument

A. Under the doctrine of dependent relative revocation, where a testamentary

document that revokes or supersedes prior documents is set aside as ineffective

(including because of lack of capacity, undue influence, fraud, or mistake), it is

presumed that the transferor intended the most recent effective document to

continue in place unless and until superseded by another effective document,

and the most recent effective document is thus deemed to be the binding

expression of the transferor’s intent (“i.e., the revocation is not absolute, but is

relative, and dependent upon the validity of” the subsequent document). Estate

of Anderson, 56 Cal. App. 4th 235, 242-43, 65 Cal. Rptr. 2d 307, 312 (1997).

Lintz v. Lintz, --- Cal.Rptr.3d ---- (2014)

© 2014 Thomson Reuters. No claim to original U.S. Government Works. 1

2014 WL 123604 Court of Appeal,

Sixth District, California.

Susan D. LINTZ, et al., Plaintiffs and Respondents,

v. Lois Lynne LINTZ, Defendant and Appellant.

H037738 | Filed January 14, 2014

(Monterey County Super. Ct. No. MP19531)

Attorneys and Law Firms

Counsel for Plaintiff/Respondent: Albert J. Nicora, Nicora

and Hespe, LLP, James Matthew Wagstaffe, Kerr &

Wagstaffe

Counsel for Defendant/Appellant: James L. Dawson,

Nicholas Garrett Emanuel, Gates Eisenhart Dawson

Opinion

Grover, J.

Defendant Lois Lynne Lintz appeals from a judgment of

financial elder abuse, undue influence, breach of fiduciary

duty, conversion of separate property, and constructive

trust. Defendant challenges only the remedial aspect of

the judgment. She argues that the probate court erred by

voiding her deceased husband’s testamentary trusts and

trust amendments executed after May 2005 without proof

of undue influence in connection with the execution of

those documents. She argues further that the probate

court’s invalidation of the trust documents

unconstitutionally interferes with her marital relationship.

Although the probate court applied the incorrect standard

for legal capacity and failed to apply a presumption of

undue influence to the interspousal transactions at issue

here, we will affirm the judgment because it is amply

supported by the evidence, especially in light of the

higher burdens incorrectly placed on plaintiffs below, and

we find no error in the remedy.

I. FACTUAL AND PROCEDURAL BACKGROUND

Defendant was the third wife of decedent Robert Lintz.

The couple married in 1999, divorced approximately six

months later, and remarried in February 2005. Their

second marriage ended when decedent died in October

2009 at age 81. Defendant has two children from a

previous marriage. Decedent had three children from two

previous marriages, and two grandchildren. When

decedent remarried defendant in 2005, he was a retired

real estate developer worth millions of dollars. Decedent

had a complicated estate plan, with holdings in both

northern and southern California. Decedent’s northern

California estate plan was contained in the Robert Lintz

Trust (the trust) and a series of amendments to the trust,

prepared over the years by decedent’s estate lawyers. The

ninth amendment to the trust, in effect when decedent and

defendant remarried, provided for decedent’s children,

grandchildren, and former son-in-law upon decedent’s

death.

In May 2005 decedent executed a tenth amendment to the

trust. The tenth amendment provided defendant with fifty

percent of decedent’s assets upon his death, with the

remaining fifty percent to be distributed among

decedent’s children and grandchildren. Between May

2005 and 2008 decedent executed several additional trust

amendments, increasingly providing defendant with more

of decedent’s assets upon his death and disinheriting his

two eldest children. Ultimately, in June 2008 defendant

and decedent, as joint settlors and trustees, executed the

Lintz Family Revocable Trust. The trust, prepared by

defendant’s attorney at defendant’s direction, purportedly

designated all of decedent’s property as community

property, gave defendant an exclusive life interest in

decedent’s estate, and gave defendant the right to

disinherit decedent’s youngest child and leave any

unspent residue to defendant’s two children.

Upon decedent’s death, decedent’s older children,

plaintiffs Susan Lintz and James Lintz, as decedent’s

successors in interest, filed a second amended complaint

against defendant alleging several causes of action

including fiduciary abuse of an elder, breach of fiduciary

duty, conversion, constructive trust, and undue influence.1

Following a 15–day bench trial, the probate court issued a

25–page statement of decision finding defendant liable for

financial elder abuse under Welfare and Institutions Code

section 15610.30, breach of fiduciary duty, conversion of

separate property funds, and finding defendant in

constructive trust of decedent’s converted funds and trust

property. The court ruled that decedent had testamentary

capacity to execute the trust instruments, but it found

defendant liable for undue influence in the procurement of

decedent’s estate plans.

Lintz v. Lintz, --- Cal.Rptr.3d ---- (2014)

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Among several remedies, the probate court voided all

trusts and trust amendments following the tenth

amendment to the trust, invalidated real property deeds,

and took steps to implement the terms of the tenth

amendment. The court concluded that much of

defendant’s spending during her marriage to decedent

constituted acts of financial abuse and conversion, and

awarded plaintiffs attorney’s fees and costs for proving

financial elder abuse under Welfare and Institutions Code

section 15610.30.

II. DISCUSSION

A. LEGAL CAPACITY STANDARD

Probate Code sections 810 to 812 set forth a mental

capacity standard related to certain legal acts and

decisions. Section 810 establishes a rebuttable

presumption “that all persons have the capacity to make

decisions and to be responsible for their acts or

decisions,” recognizing that persons with mental or

physical disorders “may still be capable of contracting,

conveying, marrying, making medical decisions,

executing wills or trusts, and performing other actions.”

(Prob.Code, § 810, subds.(a), (b).) Section 811,

subdivision (a) provides that a person lacks capacity when

there is a deficit in at least one identified mental function

and “a correlation [exists] between the deficit or deficits

and the decision or acts in question.” Section 812

provides: “Except where otherwise provided by law,

including, but not limited to, ... the statutory and

decisional law of testamentary capacity, a person lacks

the capacity to make a decision unless the person has the

ability to communicate ... the decision, and to understand

and appreciate, to the extent relevant ...:[¶] (a) The rights,

duties, and responsibilities created by, or affected by the

decision[;] [¶] (b) The probable consequences for the

decisionmaker and, where appropriate, the persons

affected by the decision[; and] (c) [¶] The significant

risks, benefits, and reasonable alternatives involved in the

decision.” (Prob.Code § 812, subds. (a)-(c).)

In contrast, Probate Code section 6100.5, the standard

applied by the probate court, contemplates a significantly

lower mental capacity standard for the making of a will,

requiring only that the person understand the nature of the

testamentary act, the nature of the property at issue, and

his or her relationship to those affected by the will,

including parents, spouse, and descendents. (Prob.Code, §

6100.5.)

In Anderson v. Hunt (2011) 196 Cal.App.4th 722, 730

(Anderson ) the court addressed “the measure by which a

court should evaluate a decedent’s capacity to make an

after-death transfer by trust.” Anderson ruled that Probate

Code section 6100.5 applied to the mental competency to

make a will, not to a testamentary transfer in general. It

thus rejected the notion that the decedent’s competency

was determined under Probate Code section 6100.5. The

court explained that Probate Code sections 810 through

812 do not impose a single standard of contractual

capacity. Because each section provides that capacity be

evaluated in light of the complexity of the decision or act

in question,2 capacity to execute a trust “must be

evaluated by a person’s ability to appreciate the

consequences of the particular act he or she wishes to

take.” (Anderson, supra, at p. 730.) Indeed, “[m]ore

complicated decisions and transactions thus would appear

to require greater mental function; less complicated

decisions and transactions would appear to require less

mental function.” (Ibid.)

Anderson further concluded that, when a trust amendment

closely resembles a will or codicil “in its content and

complexity,” a court should look to Probate Code section

6100.5 to determine whether, under Probate Code section

811, subdivision (b), a person lacks the mental function “

‘to understand and appreciate the consequences of his or

her actions with regard to the type of act or decision in

question.’ “ (Anderson, supra, 196 Cal.App.4th at p. 731.)

“[W]hile section 6100.5 is not directly applicable to

determine competency to make or amend a trust, it is

made applicable through section 811 to trusts or trust

amendments that are analogous to wills or codicils.”

(Ibid.) Because the trust amendments in Anderson merely

reallocated the percentage of the trust estate among

beneficiaries, the court considered them indistinguishable

from a will or codicil and concluded that the decedent’s

capacity should have been evaluated under the lower

capacity standard of Probate Code section 6100.5.

(Anderson, supra, at p. 731.)

Adopting the reasoning of Anderson, we conclude that the

probate court erred by applying the Probate Code section

6100.5 testamentary capacity standard to the trusts and

trust amendments at issue in this case instead of the

sliding-scale contractual standard in Probate Code

sections 810 through 812. The trust instruments here were

unquestionably more complex than a will or codicil. They

addressed community property concerns, provided for

income distribution during the life of the surviving

spouse, and provided for the creation of multiple trusts,

one contemplating estate tax consequences, upon the

death of the surviving spouse.

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B. UNDUE INFLUENCE PRESUMPTION

In property-related transactions between spouses, Family

Code section 721, subdivision (b) “imposes a duty of the

highest good faith and fair dealing on each spouse....”

This duty stems from the “general rules governing

fiduciary relationships which control the actions of

persons occupying confidential relations with each other,”

prohibiting each spouse from taking “any unfair

advantage of the other.” (Ibid.) Thus, “ ‘[i]f one spouse

secures an advantage from the transaction, a statutory

presumption arises under section 721 that the advantaged

spouse exercised undue influence and the transaction will

be set aside.’ “ (In re Marriage of Fossum (2011) 192

Cal.App.4th 336, 344.) An advantage results to one

spouse when that spouse gains or when the other spouse is

hurt by the transaction. (Gaines v. California Trust Co.

(1941) 48 Cal.App.2d 709, 714.) A spouse obtains an

advantage when the “spouse’s position is improved, he or

she obtains a favorable opportunity, or otherwise gains,

benefits, or profits. (Citation.)” (In re Marriage of

Mathews (2005) 133 Cal.App.4th 624, 629.) The

presumption is rebuttable; the spouse advantaged by the

transaction must establish that the disadvantaged spouse

acted freely and voluntarily, with “ ‘ “full knowledge of

all the facts, and with a complete understanding of the

effect of the” transaction.’ “ (In re Marriage of Fossum,

supra, 192 Cal.App.4th at p. 344.)

Family Code section 721 applies here. Although we were

not provided with transcripts of the two-day closing

arguments, there is no indication in the record before us

that the probate court applied the presumption of undue

influence arising from that section. The presumption

should have been applied to the transmutation of

decedent’s separate property to community property and

to the huge sums of money decedent transferred to

defendant. It also should have been applied to the Lintz

Family Revocable Trust, which was a contract between

decedent and defendant both as settlors and as trustees.

(In re Estate of Bodger (1955) 130 Cal.App.2d 416, 424

[“A declaration of trust constitutes a contract between the

trustor and the trustee for the benefit of a third party.”].)

The trust advantaged defendant by granting her an

exclusive and virtually unfettered life estate in decedent’s

property, disinheriting two of decedent’s three children,

and giving defendant the right to disinherit decedent’s

third child and pass decedent’s property either to her own

children or to her individual estate.

The probate court should have applied the presumption of

undue influence, thereby shifting the burden to defendant

to rebut the presumption. Even without that burden,

defendant did not prevail on the issue of undue influence

below. Our conclusion that the presumption applies only

weakens her position on appeal.

C. CHALLENGE S TO UNDUE INFLUENCE

FINDING

Consistent with common law, our Supreme Court has

described undue influence, in the context of a

testamentary disposition of property by will or trust, as

“pressure brought to bear directly on the testamentary act,

sufficient to overcome the testator’s free will, amounting

in effect to coercion destroying the testator’s free

agency.” (Rice v. Clark (2002) 28 Cal.4th 89, 96 (Rice );

see also Hagen v. Hickenbottom (1995) 41 Cal.App.4th

168, 182 [applying testamentary principles of undue

influence to estate plans executed by inter vivos trust and

pour-over will].)

Defendant argues that the probate court erred by voiding

all trust instruments executed after the May 2005 tenth

amendment based on a finding that defendant exerted

undue influence, without evidence of such influence being

exercised at the time the documents were actually signed.

Defendant concedes the court’s factual findings are

sufficient to support liability for financial elder abuse

under Welfare and Institutions Code section 15610.30,

but she argues that they are insufficient to void a

testamentary document. As framed, the issue presents a

question of law that we review de novo. (Ghirardo v.

Antonioli (1994) 8 Cal.4th 791, 799.)

1. Undue Influence May Be Proven By Circumstantial

Evidence

In In re Welsh (1954) 43 Cal.2d 173, quoting Estate of

Gleason (1913) 164 Cal. 756, 765, the Supreme Court

recognized the settled law that undue influence requires a

showing that the testator’s free will was overpowered “at

the very time the will was made.” Defendant relies on the

quoted language in In re Welsh to argue that no evidence

established that decedent’s free will was overborne at the

time the testamentary documents were executed. Given

the extensive circumstantial evidence supporting the

probate court’s undue influence finding, we can only

understand defendant to be arguing that plaintiffs failed to

produce any direct evidence of undue influence at the

time decedent signed the testamentary documents. But

plaintiffs are not required to prove their case by direct

evidence.

“Direct evidence as to undue influence is rarely

obtainable and hence a court or jury must determine the

issue of undue influence by inferences drawn from all the

facts and circumstances.” (Hannam v. Griffith (1951) 106

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Cal.App.2d 782, 786; see also David v. Hermann (2005)

129 Cal.App.4th 672, 684 [proof of undue influence in the

execution of a testamentary instrument by circumstantial

evidence usually requires a number of factors]; In re

Estate of Easton (1934) 140 Cal.App. 367, 371 [requiring

direct or circumstantial evidence of “pressure which

overpowers the volition of the testator and operates

directly on the testamentary act”].) Thus, while pressure

must be brought to bear directly on the testamentary act,

the pressure, or undue influence, may be established by

circumstantial evidence. (In re Estate of McDevitt (1892)

95 Cal. 17, 33.) As a matter of law, the probate court’s

undue influence finding need not be supported by direct

evidence of undue influence at the moment decedent

signed the trust instruments.

2. The Undue Influence Finding was Separate From

the Welfare and Institutions Code Financial Elder

Abuse Finding

We reject defendant’s assertion that the probate court’s

undue influence finding was made under Welfare and

Institutions Code section 15610.30. The version of

Welfare and Institutions Code section 15610.30 in effect

at trial provided that financial abuse of an elder occurred

when property was taken for a wrongful use, or with

intent to defraud, or by undue influence as defined in

Civil Code section 1575. Civil Code section 1575 defines

undue influence as: “(1) In the use, by one in whom a

confidence is reposed by another, or who holds a real or

apparent authority over him, of such confidence or

authority for the purpose of obtaining an unfair advantage

over him; (2) In taking an unfair advantage of another’s

weakness of mind; or (3) In taking a grossly oppressive

and unfair advantage of another’s necessities or distress.”

Some courts have required the same undue influence

showing under Civil Code section 1575 as is required to

void a testamentary document under the Probate Code.

For example, in Keithley v. Civil Service Bd. (1970) 11

Cal.App.3d 443, 451, an unlawful discharge case, the

First District Court of Appeal, citing to In re Estate of

Bixler (1924) 194 Cal. 585 (a will contest case) described

the inquiry under section 1575 as whether “one’s will was

overborne and he was induced to do or forbear to do an

act which he would not do, or would do, if left to act

freely.” In Odorizzi v. Bloomfield School Dist. (1966) 246

Cal.App.2d 123, 132, also involving an employment

matter, the Second District Court of Appeal described

undue influence as “occur[ring] whenever there results

‘that kind of influence or supremacy of one mind over

another by which that other is prevented from acting

according to his own wish or judgment, and whereby the

will of the person is overborne and he is induced to do or

forbear to do an act which he would not do, or would do,

if left to act freely.’ (Citation.)”3

The probate court cited Welfare and Institutions Code

section 15610.30 to impose financial elder abuse liability

as to plaintiffs’ first cause of action for fiduciary abuse of

an elder. This liability is supported by the court’s findings

that “[decedent] did not know the extent of [defendant’s]

spending,” and that “[w]hile it is not uncommon for a

spouse to spend money or purchase items of which the

other is unaware, and the line between such conduct and

financial abuse is not always clear, what [defendant] did

in this case went well beyond the line of reasonable

conduct and constituted financial abuse,” and the court’s

further conclusion that much of defendant’s credit card

spending and writing herself checks from decedent’s bank

account during the marriage amounted to financial abuse.

In addition to finding defendant liable for Welfare and

Institutions Code section 15610.30 financial elder abuse,

the probate court found defendant liable under plaintiffs’

separately pleaded fifth cause of action for undue

influence. On that cause of action, the court concluded

defendant exerted undue influence specifically “to

procure estate plans and control over assets, according to

[defendant’s] wishes and contrary to the wishes of

[decedent].” In support of its finding, the court cited Civil

Code section 1567,4 Probate Code section 6104,5 and

Keithley v. Civil Service Bd., supra, 11 Cal.App.3d at p.

451 (describing undue influence as “whether from the

entire context it appears that one’s will was overborne and

he was induced to do or forbear to do an act which he

would not do, or would do, if left to act freely.”). It is

clear from the statement of decision that the court made

the undue influence finding as to the fifth cause of action

under the Probate Code, not the Welfare and Institutions

Code.

3. The Probate Court Applied the Proper Undue

Influence Standard to Void the Trust Documents

We are also unpersuaded by defendant’s argument that

the probate court conflated the former Welfare and

Institutions Code section 15610.30 undue influence

standard with the standard for undue influence under

Probate Code section 6104. We note that defendant does

not challenge the findings of fact or conclusions of law

contained in the statement of decision, and we therefore

presume them to be correct on appeal. (In re Marriage of

Arceneaux (1991) 51 Cal.3d 1130, 1133.) We presume

the evidence supports the conclusion that defendant used

undue influence over decedent “to procure estate plans ...,

according to her wishes and contrary to the wishes of

decedent.” But even without that presumption, the

statement of decision establishes the undue influence

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required to void a testamentary document; defendant’s

influence overcame decedent’s free will and operated

directly on the testamentary acts voided by the trial court.

(Rice, supra, 28 Cal.4th at p. 96.)

The probate court described decedent as “helpless[ ] and

susceptible[ ] to [defendant’s] wishes and influence

beyond the susceptibility which is normal incident of [sic

] a marital relationship.” According to the statement of

decision, decedent was fearful of defendant and unable to

exercise his free will over her when it came to his money.

Defendant took an increasingly active role in procuring

decedent’s estate plans following the tenth amendment,

increasingly benefiting from the later amendments.

Defendant misinformed decedent’s lawyers of decedent’s

testamentary wishes and ultimately discontinued the

services of decedent’s long-standing estate planning

lawyers under the pretext of a fee dispute. The probate

court also noted that decedent signed the Lintz Family

Revocable Trust-the most recent estate plan prepared by

defendant’s lawyer-outside the presence of his new

counsel and against new counsel’s advice. That document

provided for unspent residue to be left to defendant’s

children, and it gave defendant the power to disinherit

decedent’s youngest child whom he adored. Decedent’s

execution of that estate plan was inconsistent with the

statement he made to his lawyer (“Why shouldn’t we

leave the property to [decedent’s youngest child]?”) on

the same day defendant insisted to the lawyer that

decedent wanted everything left to her. It was also

inconsistent with decedent’s great dislike for one of

defendant’s children. (Hagen v. Hickenbottom, supra, 41

Cal.App.4th at p. 182 [undue influence in testamentary

act requires showing that proven circumstances are

inconsistent with voluntary action of testator].) We

conclude the probate court applied the proper undue

influence standard to void the trust documents.

D .DEFENDANT’S PROBATE CODE SECTION

17200 ARGUMENT

Defendant argues for the first time in her reply brief that

because plaintiffs failed to challenge the trust instruments

under Probate Code section 17200, subdivisions (a) and

(b), defendant was deprived of the opportunity to invoke

“the well established rules pertaining to contests over

testamentary instruments based upon an allegation of

undue influence.” Although defendant waived this

argument by failing to raise it in her opening brief (People

v. JTH Tax, Inc. (2013) 212 Cal.App.4th 1219, 1232), we

also reject the argument on the merits. In the second

amended complaint, plaintiffs alleged undue influence

based on defendant’s “changing [decedent’s] long

standing estate plan.” In addition to seeking a

determination of undue influence, plaintiffs sought a

determination that the Lintz Family Trust was invalid, and

sought additional relief as the probate court deemed just

and proper. Thus, plaintiffs put defendant on notice of

their undue influence cause of action as it related to

decedent’s testamentary instruments, providing defendant

the opportunity to invoke any “well-established rules” in

defense of such a claim.

E. DEFENDANT’S SANCTITY OF MARRIAGE

ARGUMENT

Defendant argues that voiding the trust documents

because she “spent ‘too much’ of her husband’s money

during his lifetime” violates the sanctity of her marriage

to decedent under the California Constitution. This

argument fails because, as we explained above, the

probate court did not void the trust documents on that

basis. Apart from the probate court’s findings establishing

that defendant spent decedent’s money without his

knowledge and against his wishes, the trial court made

additional findings to support its undue influence

determination. Further, while the right to marry is

protected by the California Constitution (In re Marriage

Cases (2008) 43 Cal.4th 757, 809), the Constitution does

not diminish defendant’s fiduciary obligations to her

husband, nor shield her from liability for unlawful

conduct.

III. DISPOSITION

The judgment of the probate court is affirmed.

WE CONCUR:

Rushing, P.J.

Márquez, J.

Footnotes

1 Plaintiffs commenced the lawsuit before decedent’s death in conjunction with a conservatorship petition as proposed guardians ad

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litem.

2

Probate Code section 811, subdivision (a) requires “evidence of a correlation between the deficit and the decision or act in

question.” (Anderson, supra, 196 Cal.App.4th at p. 730.) Probate Code section 811, subdivision (b) provides that a deficit in

mental function is relevant only to the extent “it significantly impairs the person’s ability to appreciate the consequences of his or

her actions with regard to the type or act or decision in question.” (Anderson, supra, at p. 730.) And under Probate Code section

812, a person’s capacity is evaluated with regard to “the rights, duties, consequences, risks and benefits ‘involved in the decision.’

“ (Anderson, supra, at p. 730.)

3

During the pendency of this appeal, the Legislature amended Welfare and Institutions Code section 15610.30, subdivision (a)(3)

replacing “by undue influence, as defined in Civil Code section 1575” with “by undue influence, as defined by section 15610.70.”

(Assem. Bill No. 140 (2013–2014 Reg. Sess.) § 2.) The Legislature added a new section 15610.70 to the Welfare and Institutions

Code, defining undue influence as “excessive persuasion that causes another person to act or refrain from acting by overcoming

that person’s free will and results in inequity,” and listing factors to be considered in making an undue influence determination

under section 15610.30. (Assem. Bill No. 140 (2013–2014 Reg. Sess.) at § 3.) The Legislature also added section 86 to the Probate

Code, providing that undue influence under the Probate Code has the same meaning as it does under Welfare and Institutions Code

section 15610.70. (Assem. Bill No. 140 (2013–2014 Reg. Sess.) § 1.) While this legislation, effective January 1, 2014, does not

affect our analysis, it eliminates any doubt that the two standards are now the same. Although the new reference to “excessive

persuasion” may not be entirely clear, perhaps calling to mind Aristophanes’ Lysistrata, the Legislature declared that the newly

applied definition is not intended to supersede or interfere with the common law meaning of undue influence. (Ibid.)

4

Civil Code section 1567 provides: “An apparent [contractual] consent is not real or free when obtained through: [¶]1. Duress; [¶]2.

Menace; [¶]3. Fraud; [¶]4. Undue influence; or, [¶]5. Mistake.”

5

Probate Code section 6104 provides: “The execution or revocation of a will or a part of a will is ineffective to the extent the

execution or revocation was procured by ... undue influence.”

End of Document

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