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Wills • Capacity
WILLS#013
Legal Definition
In California, there is a statutory presumption of undue influence (or fraud) when there is a donative transfer to: (1) the person who drafted the will, (2) the family or cohabitant of the drafter, (3) a partner, shareholder, or employee of the law firm in which the drafter has an ownership interest; (4) someone in a fiduciary relationship with the transferor who transcribed the instrument* or caused its transcription; or *(5)* a care custodian of a dependent adult.
Plain English Explanation
In California, there is a statutory presumption that the dead person was unduly influenced if the dead person gives a gift to either (1) the person who wrote the will (i.e., the attorney); (2) a family member of—or someone who lives with—the person who wrote the will; or (3) someone else who works at—or owns—the law firm where the attorney works that wrote the will.
In other words, in California, an attorney cannot be a beneficiary of the wills they create for their clients and neither can their family members or co-workers.
Additionally, the presumption applies to: (4) the conservator or trustee of the estate; and (5) a person previously employed to care for the dead person.
In other words, in California, an attorney cannot be a beneficiary of the wills they create for their clients and neither can their family members or co-workers.
Additionally, the presumption applies to: (4) the conservator or trustee of the estate; and (5) a person previously employed to care for the dead person.
Hypothetical
Hypo 1: Bob is an attorney who wrote a will for Sam, an elderly client. In the will, Sam leaves his beach house to Bob. Result: The rule applies because Bob, the person who wrote the will, is getting a gift. It's assumed that Bob might have influenced Sam.
Hypo 2: Sam's will, drafted by Bob, leaves a large sum of money to Bob's daughter, even though Sam has no close relationship with her. Result: The rule applies here because the gift is going to a family member of the person (Bob) who wrote the will. It looks suspicious.
Hypo 3: In Sam's will, prepared by Bob's law firm, a significant donation is made to a charity where Bob is a board member. Result: This falls under the rule because Bob, an employee of the law firm that drafted the will, is indirectly benefiting.
Hypo 4: Sam, who requires constant care, changes his will to leave his entire estate to his caregiver, Bob, who also helped type out the new will. Result: The rule applies because Bob is a care custodian and helped transcribe the will. It seems like he could have had undue influence on Sam.
Hypo 5 Sam leaves his vintage car collection to his long-time friend Bob, who had no role in writing the will or any professional relationship with Sam. Result: The rule doesn't apply here because Bob isn't related to any of the categories like being the drafter or a family member of the drafter, an employee of the law firm, or a care custodian.
Hypo 2: Sam's will, drafted by Bob, leaves a large sum of money to Bob's daughter, even though Sam has no close relationship with her. Result: The rule applies here because the gift is going to a family member of the person (Bob) who wrote the will. It looks suspicious.
Hypo 3: In Sam's will, prepared by Bob's law firm, a significant donation is made to a charity where Bob is a board member. Result: This falls under the rule because Bob, an employee of the law firm that drafted the will, is indirectly benefiting.
Hypo 4: Sam, who requires constant care, changes his will to leave his entire estate to his caregiver, Bob, who also helped type out the new will. Result: The rule applies because Bob is a care custodian and helped transcribe the will. It seems like he could have had undue influence on Sam.
Hypo 5 Sam leaves his vintage car collection to his long-time friend Bob, who had no role in writing the will or any professional relationship with Sam. Result: The rule doesn't apply here because Bob isn't related to any of the categories like being the drafter or a family member of the drafter, an employee of the law firm, or a care custodian.
Related Concepts
How do you make a prima facie case for undue influence?
In California, can an attorney who drafts a will for their client be a beneficiary?
In California, when is there no presumption of undue influence for a donative transfer?
What happens if someone fraudulently prevents someone from creating a will?
What is an insane delusion?
What is fraud in the execution?
What is fraud in the inducement?
What is required for valid testamentary capacity?
What is required to establish fraud?
What is undue influence?
What relief is available if mistake in the inducement occurs?
When assessing undue influence, what is the presumption test?
When does a mistake in the execution occur and what is the result?
