What is the common law rule on undue influence?
California, United States of America
The following excerpt is from Miranda v. Alford, c/w G055167, G054897 (Cal. App. 2019):
The common law rule is that "'a presumption of undue influence, shifting the burden of proof, arises upon the challenger's showing that (1) the person alleged to have exerted undue influence had a confidential relationship with the testator; (2) the person actively participated in procuring the instrument's preparation or execution; and (3) the person would benefit unduly by the testamentary instrument.'" (Bernard v. Foley (2006) 39 Cal.4th 794, 800.) While there is some intentional overlap between section 21380(a) and the common law presumption, the two presumptions operate somewhat differently.
Section 21380(a) is primarily intended to apply to those whose profession may give them heightened access to persons who are especially susceptible to undue influence. (See, Rice v. Clark (2002) 28 Cal.4th 89, 97 [explaining that former Probate
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