Here is a section from an appellate brief we filed today in a probate action. A key provision n the case concerns the distinctions between “undue influence” and “general influence”; it is a point which courts often confuse. There is an understanding, caused by untold examples, that legal writing should be hideous in its structure. However, poor writing makes it difficult to persuade, because poor writing is difficult to understand. I hope that I avoided that fate in this instance:
The trial court’s analysis thus errs as a matter of law on this point by utilizing the incorrect legal standard for distinguishing between undue influence and general influence.
The distinction between undue and general influence is the difference between control and counsel, between imperative and imploring: Undue influence is fraud or force, it is coercion which destroys the independent action of another human being and forces the creation of a document that the testator would not otherwise sign: “The true test of undue influence is that it overcomes the will without convincing the judgment.” (Estate of Donovan (1903) 140 Cal. 390, 394.) General influence differs from undue influence, because general influence affects the trustor’s affections, which may then result in action. If a child threatens a parent into signing a will, that is undue influence. If a child coaxes a parent into making a will, that is general influence.