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Fire at will: powered by WealthCounselRelated to lack of capacity is another basis for challenging a will—that of undue influence.

Undue influence occurs where a testator has the required testamentary capacity, yet that capacity is subject to the control of someone else who seeks to manipulate the testator for their own selfish purposes.

Undue influence often is found to be exerted by a caregiver, who manipulates the testator into naming the caregiver as a beneficiary.  A caregiver (related or not) may certainly be deserving of some kind of extra benefit, but state law may require any changes to the estate plan benefiting the caregiver to be reviewed by independent counsel.

WealthCounsel Member over 5 yearsFor example, under California Probate Code Section 21380 some testamentary transfers to certain categories of people (caregivers, fiduciaries and attorney drafters) are presumed to be invalid, unless the person is related by blood or marriage to, is a cohabitant with, or is the registered domestic partner of the testator, or a “Certificate of Independent Review” has been prepared pursuant to Probate Code Section 21384.  Such a certificate is prepared and signed by an impartial attorney who has reviewed the circumstances of the transfer and found it to be legitimate.  Although transfers covered by Probate Code Section 21350 are presumed to be invalid, that presumption can be overcome by a showing of clear and convincing evidence, not consisting solely of testimony from the disqualified beneficiary, that the transfer was not procured by fraud, menace, duress, or undue influence.  Also, even if a Certificate of Independent Review has been created, it does not mean that the transfer cannot be challenged, it only means that the transfer will not be presumed invalid.