The New Undue Influence

48 Pages Posted: 1 Mar 2023

See all articles by David Horton

David Horton

University of California, Davis - School of Law

Reid K. Weisbord

Rutgers Law School

Date Written: February 24, 2023


The doctrine of undue influence has long been the problem child of inheritance law. Undue influence, a hazy combination of fraud and duress, supposedly invalidates bequests that a beneficiary obtained by overriding the volition of a vulnerable testator or settlor. But because relationships are complex, concepts like free will are slippery, and challenges to donative transfers are litigated after the owner dies, courts struggle to apply the rule. Making matters worse, factfinders exploit the principle’s vagueness to protect a decedent’s family at the expense of non-traditional relationships. As a result, scholars have criticized undue influence for decades, with some even calling for its abolition.

Yet this Article examines a little-noticed trend that is cutting in the opposite direction. Responding to the epidemic of elder abuse, several jurisdictions have started to experiment with a supercharged version of the undue influence doctrine. These states have realized that because the cost of pursuing undue influence allegations often dwarfs the contestant’s potential recovery, the traditional rule does not do enough to deter pernicious misconduct. Thus, as Congress often creates bounties to encourage plaintiffs to enforce statutes, these lawmakers have incentivized “probate attorneys general” to file undue influence claims. They have done so by recognizing novel presumptions of undue influence, a civil claim for undue influence as a form of elder abuse, and enhanced remedies for undue influence committed in bad faith. We call these updates of the ancient rule the “new undue influence.”

The Article then offers a ground-level assessment of this phenomenon by analyzing a dataset of nearly 7,000 recent probate and trust cases from California, which has been a pioneer in the new undue influence movement. The Article reaches three main conclusions. First, policymakers have successfully changed the economics of undue influence litigation. Indeed, the Article finds that heirs and beneficiaries who invoke the new undue influence achieve a higher “success rate”—the amount of damages or settlement proceeds divided by the maximum possible recovery—than those who only seek relief under traditional law. Second, contrary to scholars’ assumptions, judges and juries no longer seem to manipulate the undue influence doctrine to protect a decedent’s family. In fact, there appears to be no meaningful link between case results and the parties’ relationship to the testator or settlor. Third, permitting contestants to repackage probate cases as civil claims for elder abuse creates anomalies. Challengers often file probate petitions and civil complaints, opening the door for duplicative litigation, doctrinal inconsistency, and procedural gamesmanship. The Article therefore suggests ways for courts and policymakers to harness the benefits of the new undue influence while minimizing these costs.

Keywords: elder abuse, California Probate Code section 859, undue influence, probate, trust, estate

Suggested Citation

Horton, David and Weisbord, Reid K., The New Undue Influence (February 24, 2023). Utah Law Review, Forthcoming, Rutgers Law School Research Paper, Available at SSRN:

David Horton (Contact Author)

University of California, Davis - School of Law ( email )

Martin Luther King, Jr. Hall
Davis, CA CA 95616-5201
United States

Reid K. Weisbord

Rutgers Law School ( email )

Newark, NJ
United States


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