The burden of proof and who has it can often mean the difference between success or failure at trial. For any civil or probate proceedings—including contests to will or trusts—the default burden of proof is preponderance of the evidence. Analyzing the decisional law to determine if the default burden of proof has been modified to require clear and convincing evidence is a bit more convoluted. Several noteworthy Court of Appeal decisions purportedly stand for the proposition that clear and convincing evidence is required, but a detailed analysis of these cases compels a different conclusion. Instead of requiring clear and convincing evidence, an early California Supreme Court case supports the conclusion that the analysis of undue influence is meant to be similar to the sliding-scale approach under a preponderance of the evidence standard used in determining the requisite level of capacity needed to execute a trust amendment.


Unless the Probate Code provides its own applicable rule, the rules of practice applicable to civil actions apply to and constitute the rules of practice in proceedings under the Probate Code. The general rule in California is that issues of fact in civil actions are determined by a preponderance of the evidence. Since it became operative in 1967, Evidence Code section 115 provides in pertinent part, “Except as otherwise provided by law, the burden of proof requires proof by a preponderance of the evidence.” As referenced in Evidence Code section 115, “Law” refers to “constitutional, statutory, and decisional law.” Even prior to the enactment of Evidence Code section 115—as far back as 1861—the California Supreme Court stated, “Issues of fact in civil cases are determined by a preponderance of testimony[.]” Thus, except where the constitutional, statutory, or decisional law of California provides otherwise, issues of fact in proceedings under the Probate Code are determined by a preponderance of the evidence.

At trial, the party with the burden of proof must convince the trier of fact that its version of a fact is the true version. Because of this, the burden of proof associated with any particular claim has a tremendous impact on the likelihood of success for either party.


A. Lack of Constitutional or Statutory Reference to Clear and Convincing Evidence

As already noted, the default burden of proof in any probate proceeding is preponderance of the evidence, and this default burden can only be modified by constitutional, statutory, or decisional law. There is nothing to suggest that constitutional law dictates a higher standard of proof when seeking to invalidate a testamentary instrument on the basis of undue influence. As explained in the previous section, the relevant statutory law does not require a contestant to establish his or claim of undue influence by clear and convincing evidence. Since statutory law does not require clear and convincing evidence for claims of undue influence, the final source for setting a higher degree of proof is case law. As stated by the California Supreme Court:

While it is clear that case law may, in some instances, suggest a higher burden of proof than preponderance of the evidence is required, we have stated as a general principle that “judicial expressions purporting to require clear and convincing [or clear and satisfactory] evidence must be read in light of the statutory provision for proof by a preponderance of the evidence. . . . .”

With this in mind, neither the California Supreme Court nor any of its Courts of Appeal have published a reported decision requiring clear and convincing evidence to prove undue influence for challenges to testamentary instruments!

B. Decisional Law Does Not Require Clear and Convincing Evidence

Concededly, certain appellate decisions have stated that proof of undue influence in the execution of a testamentary instrument must be established by clear and convincing evidence. The most recent in this string of appellate decisions is Doolittle v. Exchange Bank. The Doolittle Court cites Conservatorship of Davidson as authority regarding the requisite burden of proof, and the Davidson court (in a footnote) cites to Estate of Truckenmiller. Truckenmiller, in turn, cites to Hansen v. Bear Film Company, Inc. When this trail of citations is traced and the cases analyzed, the proposition that clear and convincing evidence is required to prove undue influence unravels swiftly and fatally.

1. Doolittle v. Exchange Bank

The most recent case to propagate the clear and convincing evidence burden is Doolittle v. Exchange Bank. In Doolittle, the trustee filed a petition for instruction in Sonoma County Superior Court confirming the trustee’s authority to expend trust funds to defend against a contest to the deceased settlor’s trust. The contesting beneficiary also filed a petition for instruction, arguing that the provision relied upon by the trustee was, in effect, a no-contest clause, the enforcement of which was premature, and that the trustee was prohibited from participating in the contest by relying upon the authority granted to the trustee in the challenged amendment until the operative terms of the trust were determined through the underlying contest. The Sonoma County Superior Court ruled in favor of the trustee and the contestant appealed.

On appeal, the principal issue was whether the provision in the trust instructing the trustee to defend against contests operated as a no-contest clause. A related issue on appeal was whether the provision instructing the trustee to defend against contests was enforceable prior to the determination of the underlying challenge to the trust amendment containing the authorizing provision. Finally, the Court of Appeal considered the issue of whether a separate document signed by the deceased settlor providing relevant “instructions” to the successor trustee was still operative and part of the terms of the trust.

On each of the three issues before the Court of Appeal, the court affirmed the orders of the trial court. Within its published decision, while discussing the issue of whether the provision authorizing the trustee to defend against contests is enforceable prior to the determination of the underlying contest, the Court of Appeal recognizes that there is some merit to the contestant’s position: “There is some logic to [the contestant’s] contention that since the validity of the amendment conferring the trustee with the authority to defend her claims is the very subject of the litigation and has not yet been adjudicated, enforcement of the defense directive should await the outcome of the litigation.” In support of her position, the contestant asserted that the issue was analogous to a nominated executor of a contested will in that the executor nominated in the challenged will may not use estate assets to defend against the contest until it has been resolved and the will admitted to probate. The Court of Appeal, however, distinguished the will scenario from the one presented within a trust administration on the basis that an executor of a will “has neither authority nor responsibility to carry out the terms of a will until the will has been admitted to probate[,] . . . whereas, as pointed out above, the trustee under an inter vivos trust has such authority once assuming the position of trustee.”

It was within this vein of analysis that the Doolittle court notes, “A person challenging the validity of a trust instrument on the grounds that the trustor lacked capacity to execute the document or did so under the undue influence of another carries the heavy burden of proving such allegations.” The court then goes on to refer to the rebuttable presumption of capacity applicable to trust contests based on incapacity, as well as the potential for an “exceptionally low” mental capacity standard under Anderson v. Hunt. Then, almost nonchalantly, the Doolittle court continues, “Similarly, ‘the party contesting a testamentary disposition bears the burden of proving undue influence’ and ‘[u]ndue influence must be proven by clear and convincing evidence.’ (Conservatorship of Davidson (2003) 113 Cal.App.4th 1035, 1059, 6 Cal.Rptr.3d 702, disapproved on other grounds in Bernard v. Foley (2006) 39 Cal.4th 794, 816, fn. 14, 47 Cal.Rptr.3d 248, 139 P.3d 1196; § 8252, subd. (a).)” The Doolittle court ultimately held that a trust “should ordinarily be administered according to its terms unless and until the party challenging its validity sustains its heavy burden of proof.”

To be clear, no issues related to the adjudication of the underly trust contest—including the contestant’s burden of proof for her claims of undue influence—were before the Doolittle court. Indeed, the underlying trust contest had yet to be decided on its merits.

2. Conservatorship of Davidson

Conservatorship of Davidson originated as a dispute between beneficiaries of a trust executed in 1996, through which the settlor modified the distribution provided under her prior will. The primary beneficiary of the prior will filed a petition seeking an order invalidating the trust executed by the settlor and rescinding the gift to the primary beneficiary of the new trust on the basis that (1) the settlor lacked the requisite mental capacity to execute a trust; (2) the trust was prepared and executed as a result of the undue influence of the trust’s primary beneficiary on the settlor; and (3) the trust’s primary beneficiary was a care custodian prohibited by Probate Code section 21350 from receiving a donative transfer from the settlor.

At the conclusion of a court trial, the San Mateo County Superior Court denied the petition. In its written statement of decision and judgment, the trial court found (amount other things) that the settlor possessed the requisite mental capacity to execute the trust, the settlor was not subject to undue influence, and the trust’s primary beneficiary did not meet the definition of a care custodian. The primary beneficiary of the prior will appealed the trial court’s decision.

On appeal, the primary issue considered by the court was whether the trial court erred in determining that the primary beneficiary of the trust was not a care custodian. After a lengthy analysis of the care custodian statutes and competing arguments, the Court of Appeal determined there was no error. Although dicta, the court next considered if a reversal would be proper if the primary beneficiary of the trust was a care custodian. The court opined, in the context of a hypothetical scenario, that the judgment of the trial court was still correct because (statutorily) Probate Code section 21350 does not apply if the court determines, upon clear and convincing evidence, that the transfer was not the product of undue influence, and the trial court did, in fact, make an express finding to this effect.

Next, though not initially framed as an issue on appeal, the Court of Appeal considered whether the trial court erred in not making the factual findings necessary to create a rebuttable presumption that the trust was the product of undue influence, which would have placed the burden of overcoming this presumption on the primary beneficiary of the trust. After summarizing the legal requirements for triggering this rebuttable presumption, the Court of Appeal held that the trial court’s findings were supported by substantial evidence. While providing a legal backdrop to the discussion about the presumption of undue influence, the Court of Appeals states—without a supporting citation or reference—“Undue influence must be proven by clear and convincing evidence that a testamentary or other donative disposition was made as a result of undue pressure, argument, entreaty or other coercive acts inconsistent with any conclusion that the disposition was the voluntary and freely spontaneous act of the testator or settlor.” At the end of the somewhat-short paragraph, the court includes this footnote:

“‘Undue influence is established when it is shown that the testamentary disposition was brought about by undue pressure, argument, entreaty or other coercive acts that destroyed the testator’s freedom of choice so that it fairly can be said that he was not a free agent when he made his will [citation]; undue influence can be established by circumstantial evidence so long as the evidence raises more than a mere suspicion that undue influence was used; the circumstances proven must be inconsistent with the claim that the will was the spontaneous act of the testator.’ [Citation.] Clear and convincing proof is required. [Citation.] Undue influence will not be inferred from ‘slight evidence.’ [Citations.]” (Estate of Truckenmiller, supra, 97 Cal.App.3d at p. 334, 158 Cal.Rptr. 699.)

To be clear, though the beneficiary of the prior will claimed the trust was the product of undue influence, the initial burden of proof on this claim was not one of the issues on appeal. Instead, the two issues actually considered by the Court of Appeal related to whether various presumptions of undue influence were applicable.

3. Estate of Truckenmiller

In Estate of Truckenmiller, the administrator of an estate brought a petition to rescind an inter vivos gift allegedly made as a result of undue influence by the recipients, a husband and wife. In the last year of his life, and while in poor health, the decedent transferred 300 shares of Sears, Roebuck & Co. stock to himself and the wife as joint tenants. Shortly thereafter, the stock was liquidated and deposited into the decedent’s account at Bank of America. The bulk of the proceeds from the sale of the Sears stock were then used to purchase a five unit building, which was titled in the name of the decedent and the wife as joint tenants. The decedent then paid off the mortgage on the building with his personal funds. These transactions all occurred during a single four month period. The decedent died the following year, at which time the wife inherited the entire five unit property as the surviving joint tenant.

After the decedent’s death, the administrator sued the husband and wife both to recover property of the decedent obtain by the husband and wife through the exercise of undue influence and other “unlawful” practices. At trial in Los Angeles County Superior Court, the judge excluded the testimony of decedent’s friend and housekeeper. While the timing and nature of the disputed transactions raised a red flag, the decedent was mentally competent at the time the gifts were made and there was no admissible evidence that the husband or wife did anything untoward. After the administrator concluded the presentation of its case-in-chief, the husband and wife made a motion for judgment under Code of Civil Procedure section 631.8, which the court granted.

The sole issue on appeal was whether the trial court committed prejudicial error by excluding the testimony of the decedent’s friend and housekeeper. After the relevancy and admissibility of the expected testimony of the decedent’s friend and caregiver, the Court of Appeal turned to a general discussion of undue influence, including the use of circumstantial evidence as proof of undue influence. In this context, the court then declares, “Clear and convincing proof is required. (Hansen v. Bear Film Company, Inc., 28 Cal.2d 154, 173, 168 P.2d 946.) Undue influence will not be inferred from “slight evidence.” (Estate of Anderson, 185 Cal. 700, 719, 198 P. 407; [(Citations).)”, No further context or analysis for this citation was provided.

Though the Court of Appeal held that the testimony should not have been excluded, it found that there was no prejudice to the administrator because the trial court could not have found in favor of the administrator even if it had considered the testimony.

4. Hansen v. Bear Film Company, Inc.

At the end of this line of undue influence cases we find Hansen v. Bear Film Co. Though the decades-long factual background is complex and convoluted, the case essentially concerns whether a company’s founder transferred the company stock to his mother as a trustee for the benefit of his daughter (then a minor) in the event of his death. To complicate matters further, by the time the case made its way to trial, the company’s founder, his mother, his brother (who received title to the stock from mom and continued to run the business after the death of the company’s founder), and his other brother (who was the family mooch and who ultimately set in the motion the events that led to the daughter learning of her potential claim) were all dead and unable to testify.

After a prolonged trial with volumes of evidence, the San Francisco County Superior Court found that the stock transfer from the company’s founder to his mother was made upon her express oral promise and agreement that she held the stock in trust for her son and that she agreed to transfer the stock back to her son upon his request. The trial court also found that the mother did not promise or agree that she held the stock in trust for the heirs of the company’s founder or for his daughter upon his death, and that the company’s founder never demanded a retransfer from his mother during his lifetime. But, because the company’s founder was the real, true, and equitable owner of the stock and retained the right to demand its immediate retransfer into his name, the trial court held that it was his mother’s duty upon the death of the company’s owner to immediately transfer all of the stock into the name of his administrators as representatives of his estate. Stated differently, upon the death of the company’s owner the express trust failed and the mother then held the stock as a resulting trustee for the benefit of her son’s estate. Based on its “[e]laborate findings,” the trial court issued an order declaring the daughter of the company’s founder (as the sole heir of his estate) to be the equitable owner of all stock in the company and directed that the stock certificates be delivered and transferred to her in satisfaction of the trusts under which they were held.

On appeal, the issue was whether the evidence was sufficient to support the trial court’s findings and order. With the voluminous record before it, much of which was indirect or circumstantial evidence, the California Supreme Court held that the trial court’s findings were supported by substantial evidence. In this context, the Court states, “Although it is necessary, in order to establish a trust, to offer clear and convincing proof, such proof may be indirect, consisting of acts, conduct, and circumstances ([citations]), and the question whether the showing is clear and convincing is primarily one for the trial court.” Thus, the Court affirmed the judgment.

None of the Cases Serves as Actual Legal Authority for the Proposition That Undue Influence Must be Established With Clear and Convincing Evidence

That is right: The entire body of law purportedly holding that clear and convincing evidence is required to invalidate a testamentary instrument on the basis of undue influence stems from a single court of appeal decision citing a California Supreme Court case for a proposition for which the case does not stand. The Hansen decision had nothing whatsoever to do with either invalidating a testamentary instrument or undue influence. The statement to which Truckenmiller cites in Hansen expressly and exclusively concerns the burden of proof required to establish a trust in personal property.

What is more, the statements in Conservatorship of Davidson and Doolittle referencing the clear and convincing evidence standard are dicta and have no precedential value. Decisional law is only binding precedent for issues actually involved and decided. “To determine the precedential value of a statement in an opinion, the language of that statement must be compared with the facts of the case and the issues raised. Only statements necessary to the decision are binding precedents; explanatory observations are not binding precedent.” As explained by the California Supreme Court, “‘[A] decision is not authority for what is said in the opinion but only for the points actually involved and actually decided.’” The guiding principal here is that complex legal issues can be fairly resolved only when they are thoroughly analyzed, brief, and argued.

In Doolittle, the issues actually involved and decided concerned the trustee’s authority to use trust assets to defend against the trust contest and whether such a provision operates as a no-contest clause. Not only was the contestant’s burden of proof for invalidating a testamentary instrument not an issue before the court, the court’s explanatory observations regarding the “heavy burden” contestants face are dicta, and Doolittle has no precedential value on this issue.


Conservatorship of Davidson was a care custodian case where the court of appeal was asked to determine what presumptions of undue influence applied. The burden of proof by which the beneficiary of the prior will needed to establish undue influence was not actually involved nor actually decided within that appeal. Conservatorship of Davidson has no precedential value on this issue.

Thus, neither constitutional law, statutory law, nor decisional law effectively establishes clear and convincing evidence as the burden of proof for determining contests to testamentary instruments on the basis of undue influence.


In In re Anderson’s Estate, the California Supreme Court describes a process for determining whether a testamentary instrument is the produce of undue influence that can best be described as a sliding scale approach based on a preponderance of the evidence. In Anderson, the decedent’s aunt (who raised the decedent) sought to admit a will to probate over the objection of the decedent’s husband. The decedent was described as educated, intelligent, and independent, and there was no evidence that she had a “weak or subnormal mind.” By all accounts, the relationship between the decedent and her aunt was typical of a normal mother-daughter relationship. The decedent met her husband when she was 27 and he was 67, he having been previously married and having adult children. Additionally, the decedent’s husband was wealthy and she came to the marriage with nothing.

After a year of marriage, the decedent became pregnant and, during a visit from her aunt to help with the preparations for the baby, the decedent executed a will (the decedent’s mother had died during childbirth). The decedent’s will gave one-half of her estate to her aunt and the remaining half to any child or children that may survive her, and explained that she did not provide for her husband because of his independent wealth. The will was prepared by a reputable attorney and, though the aunt accompanied the decedent to the attorney’s office, the aunt left the decedent and attorney alone to discuss the details of the will.

After the decedent and her aunt left, the attorney prepared a draft for the decedent to review. Within the privacy of her room and while her aunt was out, the decedent prepared the will submitted for probate using the draft will as a guide. When she was finished, the decedent sealed the will in an envelope and placed it in her aunt’s suitcase. When her aunt returned, the decedent asked her aunt to keep the will for her, which the aunt did.

About three months after making her will, the decedent’s child was stillborn. Though the decedent was up and walking within a few days, she died of blood poisoning eight or nine days after the birth. In the intervening days, the decedent was reported to have said she wished to speak to an attorney in order to undo an “unjust act” that her aunt and uncle had caused her to do toward her husband. For his part, the husband put her off, saying they could go visit the aunt and fix the mater directly with the aunt and uncle. Two days before her death, the decedent prepared both a draft letter to her aunt and an actual letter. The letter to the aunt stated, in part, “Dear Auntie: Will you forward the original will which you witnessed in San Francisco when we were down there.” Though they had several conversations on the matter generally and the husband read the letter to the aunt, the husband testified at trial that he did not know his wife had made a will.

At trial, the jury decided the issue of whether the facts “were sufficient to prove affirmatively, as a conclusion fairly to be drawn from them, that it was actually the fact that in executing the will the mind and will of the testatrix were overpowered by her aunt[.]” In analyzing this issue, the California Supreme Court found the facts insufficient to support such a finding. In this context, the Court explained:

It is no easy thing to overpower the mind of a normal person in full possession of his senses by the mere pressure of importunities and entreaties . . . .¶ This can happen but rarely in cases of persons of normal strength of mind in the full possession of their faculties, unimpaired by infirmity. The evidence which would justify the conclusion that it had occurred in any particular case of that character would have to be very strong indeed.

In contrast to this scenario and requisite factual showing, the Court next explained:

This, of course, is not true where the mind of the person subjected to the pressure is naturally weak or is impaired by sickness, extreme physical weakness, or some other cause, and it will be found upon examination that in nearly every case where a will has been set aside as the result of undue influence consisting simply in the pressure of importunity and entreaty, there has existed the element of a mind and will weak or for some reason impaired.

This “sliding-scale” analysis has been noted in other decisions:

Undue influence is relative. Influence which reaches the stage of being undue influence is not at all the same in every case. In one case it takes but little to unduly influence a person; in another case much more. It takes little influence generally in a case where a person is without mentality, intoxicated or under opiates. Accordingly, every case must be viewed in its own particular setting.

Thus, the California Supreme Court appears to support a sliding-scale approach based on a preponderance of the evidence.

A relative approach dovetails with the legal authority discussing the use of circumstantial evidence to support a finding of undue influence. Here, it is established that “proof of undue influence by circumstantial evidence usually requires a showing of a number of factors which, in combination, justify the inference, but which taken individually and alone are not sufficient.” (David v. Hermann (2005) 129 Cal. App. 4th 672, 684, quoting 12 Witkin, Summary of Cal. Law (9th ed. 1990).) As noted by the California Supreme Court:

While it is true that there must be proof that the influence was used directly to procure the will, . . . such proof exists where the evidence is of such a nature as to warrant the inference that the will was the direct result of the influence exerted for the purpose of procuring it, and was not the natural result of the uncontrolled will of the testatrix.

Simply stated, undue influence is often proven by asking the trial court to make inferences from the evidence. Taken together, when the testator is more vulnerable to undue influence the amount of evidence or number of factors relied upon may be less and inferences relied upon more than when the testator is not particularly vulnerable to undue influence, in which case the amount of evidence or number of factors relied upon should be more and the court should be asked to make fewer inferences (if not no inferences) in order to support a finding by the preponderance of the evidence.

Interestingly enough, this sliding-scale approach described by the California Supreme Court in 1921 is fairly analogous to the sliding-scale analysis established relatively recently for determining the level of capacity required to execute a trust amendment. In this way, the vulnerability of the victim is to undue influence as the content and complexity of the instrument is to the requisite level of capacity.


Regardless of whether the burden of proof is preponderance of the evidence or clear and convincing evidence, it needs to be readily apparent to practitioners which standard applies—and whether a sliding-scale approach is involved—if they are to adequately and accurately advise their clients of the risks and benefits of trial. Given the convoluted and inadequate legal authority presented in the Doolittle line of cases, combined with the custom and practice of practitioners spanning decades, it is worth the time and effort of the legislature to consider a statutory solution to this issue that will resolve the ambiguity and uncertainty.