What is the burden of proving undue influence on a testamentary instrument?
California, United States of America
The following excerpt is from Nasland v. Nasland, D055777, Super. Ct. No. 37-2007-00078245-CU-PO-CTL, Super. Ct. No. 37-2007-00101910-PR-TR-CTL (Cal. App. 2012):
We further conclude that trial court erred in finding a rebuttable presumption of undue influence. "While the person challenging the testamentary instrument ordinarily has the burden of proving undue influence, 'under certain narrow circumstances, a presumption of undue influence may arise, shifting to the proponent of the disposition the burden of proving by a preponderance of the evidence that the donative instrument was not procured by undue influence.' [Citation.]" (David v. Hermann (2005) 129 Cal.App.4th 672, 684.) The presumption of undue influence arises upon a showing that " '(1) the person alleged to have exerted undue influence had a confidential relationship
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