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Elderly, isolated and ill individuals are at a high risk to a person or caretaker who exerts pressure to gain an undeserved benefit upon their death. Undue influence is a form of elder financial abuse. In such a situation, family members must assert their rights in probate court to enforce their loved one’s true intentions. Challenges to a will based on undue influence require a probate litigation attorney in the Bay Area. He or she should have experience in all matters regarding contested wills and trusts. This is because courts are reluctant to invalidate testamentary wills that otherwise appear valid.


To execute a legal will, a testator must understand the nature of the will, his or her relationships to family members and the amount and kind of property owned. These three elements must be present to have the requisite mental capacity to execute a valid will. If an outside person or caretaker exercises pressure to negate the testator’s free will, the probate court has the power to declare the will or trust invalid upon objection by a family member.

The California Probate Code creates a presumption of fraud when a will meets certain conditions. One such presumption arises when a testator is dependent upon a caretaker who receives a transfer under the will or trust. When this statutory presumption arises, the person accused of exercising undue influence bears the burden of proving there was no fraud.


Determining whether undue influence occurred upon a testator is rarely a simple case. For example, imagine a situation where “Betty” is elderly, living in her own home and is in need of assistance. Betty hires a caregiver, who may be a family member or a non-relative. Betty’s heirs, whether they are children or other relatives, do not visit or call very often.

In her will, Betty leaves everything to her caregiver. Is this a result of undue influence? Sometimes it is, but sometimes it is not. The caregiver can take advantage of his or her position to exert pressure over the care receiver. The care receiver becomes very dependent on the caregiver in those situations, both physically and emotionally.

Sometimes the threat is explicit. For example, “If you do not take care of me by leaving me your estate, then I will abandon you. There is no one else to care for you and you will have to go into a rest home.” Sometimes it is unspoken but implicit.


In cases of elder financial abuse and undue influence, only an experienced probate litigator can handle all the comprehensive legal aspects and emotional turmoil of the case. If you have questions about whether undue influence occurred, we can help. Charles Triay, the founder of Triay Law Office, has specialized in contested wills and trusts for over 30 years. He has provided unsurpassed representation in notable cases throughout northern California. Unlike other law firms, the Triay Law Office gives clients the option to pay probate litigation attorney fees on an hourly or contingency basis. 

Please contact our probate litigation lawyers to set up a consultation.

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  • Probate is the legal process of administering a deceased person’s last will and testament or according to intestate law. Certain trusts only go into effect upon the death of the testator, and may therefore be part of a probate administration. California probate courts oversee probate administration and probate litigation.

  • Probate litigation is the term for a lawsuit when a party, such as an heir, beneficiary, creditor, third party or omitted spouse contests a will. Probate litigation also includes charges against fiduciaries of trusts or estates, or creditors’ claims against an estate.

  • There are several different reasons for contesting a will. For example, claims of undue influence and lack of capacity are common causes for probate litigation. Some individuals may argue that the will is defective, or that the estate trustee is breaching a fiduciary duty. If you are an omitted spouse or if your spouse leaves you less than required by California law, you may have a claim against the estate as part of your spousal rights.

  • A fiduciary duty is the obligation to act honestly, fairly and in good faith when handling the deceased person’s estate. There are multiple fiduciary duties that executors, administrators and trustees are legally required to follow, including keeping proper accountings of all investments, as well as money going in and out of the trust or estate. Violation of this duty or poor performance in administrating the estate may result in legal action by the estate’s beneficiaries.

  • Just as in all types of civil litigation, the law allows you to represent yourself in a probate proceeding. However, we strongly advise having a seasoned probate litigation lawyer handle your case to ensure that California probate law upholds your best interests.​

  • Even in death, a person is liable for their debts. For example, creditors may bring claims against a person’s estate after their death to receive payment.

  • A codicil is a document that makes small changes to the terms of a last will and testament. An individual may use codicils when they want to amend their last wishes without having to create an entirely new will. A codicil will only be legally valid and enforceable if executed in the same manner as a will. Codicils are particularly useful upon remarriage, additional children born, or new property acquired by an estate.​

  • If a person dies without a will, then California intestacy laws will dictate the division of their estates to the heirs at law. These laws will then distribute property and assets depending on the marital status, number of children and surviving relatives of the deceased individual.

About Triay Law Office

Probate litigation attorney Charles Triay has specialized in California probate litigation matters for over 30 years.

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4 Orinda Way Suite 200-Dorinda, CA 94563


4 Orinda Way Suite 200-D

Orinda, CA 94563

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