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Hinshaw Estate Planning Blog

Tuesday, May 24, 2016

Shifting the Burden of Proof

One way of proving undue influence is to shift the burden of proof onto the person that you feel exerted the undue influence over the decedent. If done successfully, the individual who allegedly exerted the undue influence must then prove that no such influence existed. This is a challenging position to be placed in during a trust or will contest proceeding.

Since shifting the burden of proof is an ideal way to prove undue influence, how is it best accomplished? Undue influence will be presumed under California law if three facts can be proved. These facts include:

  • That a confidential relationship existed between the person exerting the undue influence and the decedent. This confidential relationship may be as trustee, agent under power of attorney, court ordered conservator, or a personal familial relationship such as parent/child.                                                                                                            
  • That the person exerting the undue influence actively participated in the preparation or execution of the will.
  • That the person exerting the undue influence received an undue benefit from the new will.

An example of where the burden of proof for undue influence can be successfully shifted exists when the person exerting the undue influence is named the trustee of the trust or executor of the will, he or she arranged for a new trust or will to be drafted, and under the new trust or will his or her interests increased from a small to a significant amount.




Hinshaw Estate Planning is a practice group of Hinshaw, Marsh, Still & Hinshaw and assists clients in matters related to Estate Planning, Asset Protection, Planning for Children, Inheritance Protection, and Estate & Trust Litigation in the areas of Saratoga, San Jose, Los Gatos, Monte Sereno, Campbell, Santa Clara, Sunnyvale, Cupertino, Los Altos, Los Altos Hills, Mountain View, and Palo Alto within Santa Clara County, the areas of Menlo Park, Woodside, Atherton, Portola Valley, San Carlos, and Redwood City within San Mateo County, and the Greater San Francisco Bay Area.



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