Who has the burden of proving undue influence?

In California, generally the contestant (the person challenging the Will) bears the burden of proving that there was undue influence. However, the proponent of the Will has the burden of proof where he or she is a prohibited transferee under California Probate Code Section 21380.

 A contestant, however, may shift the burden of proof if he or she can show the following:

  1. The existence of a confidential relationship between the testator and the person alleged to have exerted undue influence;
  2. That person's active participation in procuring the instrument; and
  3. Undue profit.

Given the high threshold, the person who challenges a Will or other testamentary instrument may have a difficult time collecting the evidence to successfully win a contest. 

Unfortunately, a practical reality faced by many potential contestants is that the dollar amounts at issue may not justify the expense of hiring a lawyer to go to court over the matter.  That being said, an experienced lawyer who specializes in these types of cases, would be in the postition be to help you evaluate whether this is an avenue worth pursuing.