Filed 10/28/20 Estate of Rubin CA2/1

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

Estate of FLORA RUBIN, 

Deceased.

 B295525

 (Los Angeles County

 Super. Ct. No. BP157706)

HAYM GANISH,

Petitioner and Appellant,

v.

LOUIS COOPER,

Contestant and Respondent.

LOUIS COOPER,

Petitioner and Respondent,

v.

HAYM GANISH,

Objector and Appellant.

 (Los Angeles County

 Super. Ct. No. BP159538)
2

APPEAL from orders of the Superior Court of Los Angeles

County, Brenda J. Penny, Judge. Affirmed.

Shaw Koepke & Satter and Jens B. Koepke for Contestant 

and Appellant.

Paul Kujawsky for Petitioner and Respondent.

____________________________

Appellant Haym “Victor” Ganish appeals from the probate 

court’s orders invalidating certain testamentary instruments 

executed by Flora Rubin, who died in 2014 at the age of 102. 

Ganish, 27 years Rubin’s junior, met her when she was in her 

late eighties or early nineties. He eventually moved in with her 

and they regarded each other as boyfriend and girlfriend. Rubin 

had macular degeneration and was nearly or completely blind for 

the last decade of her life. 

In 1995, before meeting Ganish, Rubin executed a will and 

trust distributing her estate to friends, a charity, and family 

members, including respondent Louis Cooper, her nephew.1 By 

2004 she had amended those documents twice to add additional 

beneficiaries and adjust the distributions. In 2012, at the age of 

100, she executed a new will and an amended and restated trust 

granting nearly everything to Ganish and his children, and 

expressly disinheriting Louis.

Louis contested the 2012 instruments, as well as an 

unsigned instrument purportedly prepared in 2011, and 

petitioned for probate of the 1995 will. The probate court found 

1 Because Louis Cooper shares a last name with other 

individuals mentioned in this opinion, we refer to him by his first 

name. We intend no disrespect.
3

that Ganish had procured the later instruments through undue 

influence, and ruled in Louis’s favor.

On appeal, Ganish contends the probate court failed to 

apply the correct standard of proof of clear and convincing 

evidence, instead allowing Louis to prove undue influence by a 

preponderance of the evidence. We reject this argument. 

Although the probate court did not state what standard of proof it 

applied, we must presume the probate court knows the law and 

applies it correctly in the absence of evidence to the contrary. 

Also, the record indicates the probate court was aware of the 

correct standard of review given briefing it requested from the 

parties on that issue, and the statement of decision reflects a 

certainty consistent with the clear and convincing standard.

We further conclude that substantial evidence in the record 

supports the finding of undue influence. Competent evidence 

supports an inference that, over a period of years, Ganish drove a 

wedge between Rubin and her extended family and isolated her 

from trusted caregivers and advisors. At the same time, he 

exerted control over her medical care and misled her to believe 

her finances were in disarray, rendering her frightened, confused, 

and wholly dependent on him. The probate court expressly found 

this evidence credible, and rejected the testimony in support of 

Ganish. We must defer to those determinations.

Accordingly, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

We limit our summary of the facts to those necessary to 

resolve this appeal. Consistent with the standard of review (see 

post), we present the evidence “in the light most favorable to the 

prevailing party below.” (Conservatorship of O.B. (2020) 9 Cal.5th

989, 1011 (O.B.).) We therefore focus our summary on the 
4

evidence supporting the judgment, and do not summarize 

extensively the evidence presented by Ganish in support of his 

case. (See Schmidt v. Superior Court (2020) 44 Cal.App.5th 570, 

582 (Schmidt) [on substantial evidence review, appellate court 

disregards evidence contrary to the judgment].) 

To the extent any of the evidence summarized here 

arguably falls within the definition of hearsay, we include it in 

the absence of an objection at trial. (People v. Panah (2005) 

35 Cal.4th 395, 476 [“ ‘ “hearsay . . . , if received without objection 

takes on the attributes of competent proof when considered upon 

the question of sufficiency of the evidence to support a 

finding” ’ ”].)

Rubin was born in 1912 and died in 2014 at the age of 102. 

Her husband and adult son predeceased her decades earlier. 

Rubin had macular degeneration and by approximately 2003 was 

nearly or completely blind. 

Ganish was born in 1939. According to Ganish, he and 

Rubin met in 2001. At some point he began staying overnight in 

her apartment, and eventually moved in with her. Rubin 

sometimes would identify Ganish to people as her “boyfriend,” 

and sometimes as her “caregiver.” Ganish also identified himself 

alternatively as Rubin’s boyfriend or caregiver. 
5

1. Rubin’s testamentary instruments2

a. Original will and trust

On June 13, 1995, Rubin executed a will and trust. The 

will disposed of certain jewelry and furs and named as executors 

her brother Irving Cooper and nephew Louis.3 Upon her 

death, the trust was to distribute $300,000 to her nephew 

Earl Foreman, with smaller distributions to Irving, Louis, and 

others, with the remainder establishing three named funds at a 

specified charity. Irving and Louis were named as co-successor 

trustees. 

The trust also distributed to Louis “any promissory note 

and/or deed of trust executed by Louis Cooper in favor of 

[Rubin]. . . .” As detailed further post, Louis had borrowed 

$30,000 from Rubin in 1987. 

On May 4, 2000, Rubin executed a codicil to her will 

changing the recipients of her jewelry to Irving, Louis, and 

Foreman and giving her personal property to Louis and Foreman. 

Rubin also amended the trust, adjusting the distribution 

amounts, including increasing the gift to Foreman to $500,000, 

and adding a number of family members as additional 

beneficiaries. The amended trust again distributed to Louis his 

promissory note. 

On January 16, 2004, Rubin amended the trust again, 

keeping the same beneficiaries but adjusting the distribution 

2 We paraphrase the testamentary instruments for context 

only, and our summary of their contents is not binding on any 

future proceedings concerning these instruments.

3 As with Louis, we refer to Irving Cooper by his first 

name.
6

amounts. Rather than giving a specific gift to Foreman, the trust 

now distributed 30 percent of the trust residue to him. The 

amended trust again distributed to Louis his promissory note. 

b. Unexecuted amended trusts

The record contains an unsigned document entitled “The 

Second Amended and Restated Flora Rubin Trust.” (Some 

capitalization omitted.) A later document signed by Rubin states

that the second amended and restated trust was dated October 4, 

2011, but no executed copy appears in the record. 

The purported second amended and restated trust

distributed Rubin’s personal property to Ganish, except for a fur 

coat gifted to Foreman. It granted $400,000 to Foreman and 

$400,000 to Ganish, with smaller gifts to three family members 

and a different charity than that specified in the earlier trust 

documents. The residue went to Ganish. The document listed 

Ganish and Foreman as co-successor trustees. Louis and most

other beneficiaries of the original trust were omitted from the 

document.

The purported second amended and restated trust referred

to an earlier “Amended and Restated Flora Rubin Trus[t] dated 

August 10, 2010,” although that purported document does not 

appear in the record, executed or unexecuted. 

c. Third amended and restated trust

On September 13, 2012, when Rubin was 100 years old, she

executed “The Third Amended and Restated Flora Rubin Trust.” 

(Some capitalization omitted.) 

This trust granted Rubin’s fur coat to Foreman and the 

remainder of her personal property to Ganish. Foreman’s specific 

gift was reduced to $25,000, with small gifts to two other family 
7

members, and no distribution to charity. The remainder went to 

Ganish, or to two of his children if he did not survive Rubin. 

Ganish was appointed successor trustee, with his two children cosuccessor trustees if Ganish did not survive. 

The third amended and restated trust expressly “made no 

provision herein for Louis Cooper. . . .” 

On the same date, Rubin executed a new will bequeathing 

her entire estate to her trust. She appointed Ganish executor, 

with his two children as alternate executors, and expressly 

excluded Louis from the will. 

On October 23, 2012, Rubin amended the third amended 

and restated trust to no longer grant her fur coat to Foreman, 

and instead, distribute all personal property to Ganish. 

In a letter dated June 16, 2014, Rubin’s attorney enclosed 

for her review a “proposed Resignation of Trustee” document 

under which Rubin would resign as trustee and Ganish would 

become the new trustee in accordance with the third amended 

and restated trust. The letter stated that Rubin and her attorney 

previously had discussed the document. The record does not 

reflect that Rubin signed the document.

2. Challenges to testamentary instruments

Following Rubin’s death, Ganish filed a petition for probate 

of the September 13, 2012 will. Louis filed a contest to that will, 

and a petition for probate of the June 13, 1995 will and May 4, 

2000 codicil. Louis also filed a petition to invalidate the second 

and third amended and restated trusts and the amendment to 

the third amended and restated trust. Louis contended that 

Rubin lacked testamentary capacity and that the challenged 

instruments were the product of undue influence. 

The probate court tried the petitions and contest together. 
8

3. Witness testimony

We summarize below the testimony of certain witnesses at 

trial.

a. Barbara Cooper4 and Sharleen Blair

Barbara Cooper is Rubin’s niece.5 She visited Rubin 

frequently at Rubin’s apartment, apart from a four-year period 

beginning approximately 2009 in which Barbara’s son was ill 

with cancer. During the period when Barbara did not visit, she 

continued to contact Rubin by phone. Barbara said it became 

more difficult to speak with Rubin on the phone when Ganish 

was there. 

Rubin told Barbara that Ganish did not believe in 

American medicine and that Rubin was not taking as much 

medication anymore. Barbara heard Ganish say on several 

occasions that “ ‘American medicine is poison,’ ” including in front 

of Rubin. 

Although Rubin was hospitalized numerous times during 

her relationship with Ganish, Ganish never contacted Barbara to 

let her know. 

In 2013, after Barbara’s son died, she went to see Rubin 

after being unable to reach Rubin by phone for months—Ganish 

4 As with Louis, we refer to Barbara Cooper by her first 

name.

5 Rubin added Barbara as a beneficiary to her trust in the 

May 4, 2000 amendment, initially granting Barbara 10 percent of 

the trust residue after payment of specific gifts. Rubin changed 

the distribution to seven percent of the trust estate in the 2004 

amendment. Barbara remained a beneficiary in the third 

amended and restated trust with a specific gift of $10,000. 
9

would tell Barbara that Rubin would call her back, but she never 

did. Barbara’s friend, Sharleen Blair, went with her. Barbara 

described Ganish “dragging [Rubin] out from her bedroom” 

“totally in a stupor.” Ganish sat Rubin on the couch next to 

Barbara. Rubin dropped her head onto Barbara’s shoulder and 

drooled. Barbara described her as “out.” 

Blair similarly testified that during the visit to Rubin, 

Ganish “all but carried [Rubin] out,” at which point Rubin 

mumbled, then fell asleep and drooled on Barbara’s shoulder. 

Blair further testified that during an earlier visit to Rubin’s 

apartment, Blair saw what appeared to be brand new and sealed 

containers of medication. Rubin told Blair that Ganish had told 

her not to take them because they were not good for her, and to 

take only what Ganish gave her. 

Barbara contacted adult protective services about Ganish,

but no action was taken on the complaint. 

b. Cheryl Williams

Williams is Louis’s girlfriend. From 2001 to 2008, she saw 

Rubin at least once a month, sometimes at Rubin’s home and 

sometimes at Louis’s home. Williams sometimes would read 

documents such as bank statements to Rubin. 

In 2009, Louis was trying to call Rubin as he often did, but 

had not heard from her in five or six days. Louis and Williams 

went to Rubin’s apartment to check on her and Ganish answered 

the door. Ganish was “hostile” and stood in the doorway. Louis 

and Williams slid past him. 

Rubin was inside. Louis and Williams asked Rubin why 

they had not heard from her. Ganish spoke to Rubin, telling her,

“ ‘These people are not your family. These people are not your 

real family.’ ” He continued: “ ‘These people don’t love you. I am 
10

the only one that loves you, that cares for you.’ ” Louis reminded 

Ganish that Louis was the executor of Rubin’s estate. Ganish 

said, “ ‘Not anymore you’re not.’ ” 

Ganish resumed speaking to Rubin, stating that he was the 

only one who came to see her at the hospital, and that no one 

loved her but he. Williams responded that Ganish was the only 

one at the hospital because he had not informed any of the family 

that Rubin was hospitalized. Williams accused Ganish of not 

telling anyone to “ ‘ma[k]e yourself look like a hero” to Rubin.

Ganish continued to repeat that Louis and Williams were 

not Rubin’s family, and that only he loved her. Rubin appeared 

“dazed.” Williams told Rubin that they were there because they 

were worried about her, and reminded her that Louis had always 

visited, and taken her out to lunch or shopping, and had 

arranged with the landlord to repair the windows in Rubin’s 

apartment. Williams said, “ ‘You know that Lou is your family, 

you know that, Flora,’ ” and Rubin said, “ ‘Yes, that’s true.’ ” 

At this, Ganish “got furious” and said to Rubin, “ ‘You 

choose between him or me. And I’m going to pack my bags and 

I’m leaving.’ ” Ganish left the room. Rubin said, “ ‘Victor. Victor. 

Don’t get angry. Don’t get mad,’ ” and began feeling her way 

down the hallway after him. Rubin was “in tears” and “upset.” 

Williams, concerned that Rubin was going to have a heart attack 

or otherwise get sick, urged Louis to leave. Louis did not want to 

leave, but relented, and they departed. 

Williams said it took her “months to get over what I saw,” 

and she could not bear to visit Rubin again with Ganish there. 

She did not see Rubin again before Rubin’s death. 
11

c. Louis Cooper

Prior to 2009, Louis would see Rubin multiple times a 

month, and would call her at least three times a week. He would 

take her to the doctor, out for coffee, or shopping. He also took 

her to family parties and to dances for senior citizens. Around 

2004, while Rubin was in the hospital for surgery, Louis arranged 

to have her apartment repainted and repaired. 

In 1987, Louis borrowed $30,000 from Rubin, and executed 

a note securing the loan. He paid monthly interest of $275 on the 

loan until 2009, but never repaid the principal. In 2009, he asked 

Rubin to forgive the loan, and he contends she did.6

Louis corroborated Williams’s account of the 2009 incident 

at Rubin’s apartment in which Ganish told Rubin that Louis 

did not care about her or love her. According to Louis, Ganish 

told Rubin to “ ‘get [Louis and Williams] out of here or I’m leaving 

you.’ ”

Louis contacted the police and the district attorney out of 

concern for Rubin and her relationship with Ganish, but nothing 

came of it. He also asked his sisters to contact adult protective 

services. 

After the confrontation in Rubin’s apartment, Louis did not 

speak with or see Rubin again before she died. 

6 Louis claimed Rubin arranged for an attorney to draft a 

document forgiving the loan. The document was introduced at 

trial. The probate court found “there is contradictory evidence in 

the record about the significance of the document.” We do not 

rely on the document in resolving this appeal.
12

d. Marlene Waliany

Marlene Waliany worked as Rubin’s caregiver beginning in 

2008. She shopped, cleaned, took Rubin to the doctor, made 

appointments for her, and picked up her medications. Waliany 

said it was “[l]ike [Rubin] was like my mom.” Waliany also would 

take Rubin to Chase Bank once a week, where Rubin would 

discuss her finances with a bank employee. 

Waliany knew Rubin’s extended family. Barbara and Louis 

would visit, with Louis visiting more often. Rubin enjoyed their 

visits and was also happy to talk to family members by phone. 

Rubin told Waliany that Ganish said nobody cared for her 

except him. Waliany said that she loved Rubin, and Rubin’s 

family loved her too, but Rubin did not listen to her. Waliany 

heard Ganish say that medicine did not help Rubin, and that the 

only thing that would help her was fish oil. 

At some point, Ganish informed Waliany he did not want 

her to work for Rubin any more. Waliany called Rubin to tell her, 

and said that Ganish only wanted Rubin’s money. Ganish got on 

the phone and screamed at Waliany that she was fired. 

Ganish nevertheless allowed Waliany to return. After a 

few months, he decided to care for Rubin himself, at which point 

“he d[idn’t] want [Waliany] to be there [any]more,” and her 

employment ended in January 2012. 

e. Earl Foreman7

Foreman is Rubin’s nephew, and lives in Chicago. He 

routinely spoke to Rubin by phone one or more times a week, and 

7 Foreman did not appear at trial. Counsel read portions 

of Foreman’s deposition testimony into the record. 
13

estimated he spoke to her at least 50 or 60 times in the last year 

of her life. Starting around 2011, Ganish would answer the 

phone for Rubin on weekends, and by 2012, Ganish would always 

answer the phone. Ganish usually would not put Rubin on the 

phone, but would say she was sleeping or in the bathroom. 

Sometimes Foreman would lose his temper and Ganish would put 

Rubin on the phone. Foreman said Rubin was always happy to 

talk to him. 

Eric Yudis was Rubin’s investment counselor and 

representative at Chase Bank. In 2010, during a meeting at 

Chase, Rubin put Yudis on the phone with Foreman. Yudis 

suggested that Foreman start receiving Rubin’s financial 

statements so Foreman could explain them to her. For the next 

several years, Foreman received Rubin’s stock and bond 

statements on a monthly basis and would discuss them with 

Rubin on the phone. 

On one call, Ganish answered and Foreman heard Rubin 

screaming in the background, “ ‘What am I going to do now? Oh, 

my God. I’m totally broke. I have no money left. What happened 

to me? What am I going [to] do? How am I going to pay my bills? 

What’s going on?’ ” Foreman asked to speak with Rubin, and 

Ganish said, “ ‘You don’t have to talk to her.’ ” Foreman insisted 

and Ganish put Rubin, still screaming, on the phone. 

Foreman told Rubin he had just received her bond 

statement, and she still had $967,000 in bonds. He reminded her 

she had been sending him her statements for two years, and he 

was not sure why she was having a tantrum. Rubin said, “ ‘That 

man’s got me all confused. I don’t remember [any]thing.’ ” The 

record does not specify to whom Rubin was referring.
14

Ganish then got on the phone and asked why Foreman was 

receiving Rubin’s bank statements. Ganish told Foreman to send 

the statements to him, because he was in charge of the estate and 

all the bonds. Foreman refused, and told Ganish to stop scaring 

Rubin. After that conversation, Foreman no longer received 

Rubin’s statements. When he told Rubin this, she told him not to 

worry about it. 

On other occasions, Rubin told Foreman that Ganish had 

fired various caregivers because they were stealing food and 

charging too much. She also said that Ganish had stopped her 

from taking her medication because he thought it was harming 

her. Ganish told Foreman he believed Rubin’s doctors were 

poisoning her, and that her health had improved because she had 

stopped taking medication. Ganish did not inform Foreman of 

Rubin’s various hospitalizations. 

f. Victor Ganish

Ganish testified that he and Rubin “were like husband and 

wife,” and he “gave her a promise ring” to indicate he “would 

never leave for the rest of [his] life.”

Ganish acknowledged firing at least one caregiver, 

although he said Waliany quit. By 2013 Rubin no longer had 

caregivers other than Ganish. Ganish acknowledged that Rubin 

loved Waliany, and Waliany loved her. 

Ganish said he was not Rubin’s financial advisor and 

was not interested in her financial affairs. He would help when 

she asked, however, and by 2010 was helping with her finances. 

Louis’s counsel played a recording of a call with 

Transamerica, where Rubin had investments. At one point 

Rubin put Ganish on the phone and he explained to the 

Transamerica representative that Rubin had “lost all her money” 
15

and had nothing left besides the funds in Transamerica. When 

Louis’s counsel inquired about this assertion, Ganish first 

claimed he meant only that if Rubin did not obtain money from 

Transamerica to close escrow on a house, she would lose a 

$21,000 deposit. Pressed further, Ganish explained at length 

about money Rubin purportedly had lost, listing amounts and 

financial institutions. 

Ganish accompanied Rubin monthly to see Yudis, her 

representative at Chase Bank. Ganish did not think Yudis was 

honest. Additional recordings of telephone calls with 

Transamerica indicated that Ganish assisted Rubin in removing 

Yudis as the agent of record for her account with Transamerica. 

During one call, Rubin told the Transamerica representative that 

Yudis had forged Rubin’s signature to put himself on her account, 

and she planned to sue him. 

Asked why Rubin stopped working with Yudis, Ganish 

stated that Yudis had been “cut” from Chase Bank and placed 

under house arrest. Ganish said Yudis told him this, then 

changed his testimony and said he did not know where Yudis 

was, and the other Chase employees just told him Yudis was not

there anymore. Yudis later contacted Rubin and asked her to 

transfer her accounts to his new bank, U.S. Bank. Ganish told 

her not to do so because Yudis was a crook. Rubin transferred 

her accounts anyway, but ceased working with Yudis a few 

months later. Ganish said this was because she had not received 

any monthly income after transferring her account. 

Regarding Rubin’s extended family, Ganish first testified 

that he did not remember arguing with Louis at Rubin’s 

apartment. During a later day of testimony, however, Ganish 

presented his version of the 2009 incident described by Louis and 
16

Williams. Ganish testified that Louis was the aggressor, and 

Rubin had told Louis to leave. 

Ganish confirmed that Foreman called Rubin at least 

weekly. 

In 2011, Rubin was hospitalized after falling down. Ganish 

did not inform any of her relatives. After Rubin had been in the 

hospital three days, Ganish, against the doctors’ advice, took her 

home without going through normal discharge procedures. 

Ganish said Rubin was turning blue, and he believed the 

treatment they were giving her was “killing her.” Ganish locked 

the door to Rubin’s hospital room so the nurses could not come in, 

and removed her IV and catheter himself. 

g. Richard Skolnick

Skolnick was Rubin’s attorney. Except for the 2004 trust 

amendment, he drafted all the testamentary instruments at issue 

in this case, including the 1995 trust and the 2012 third amended 

and restated trust. 

Skolnick testified that Ganish was present when he 

discussed estate matters with Rubin, but it was Rubin, not 

Ganish, who instructed that she wanted the balance of her estate 

to go to Ganish in the third amended and restated trust. Ganish 

never told him what to put in the estate documents. 

Skolnick stated that Rubin had told him she was mad at 

Louis for not paying back money he owed. Skolnick did not recall 

when Rubin told him this. 

Skolnick prepared the proposed document, sent to Flora in 

2014, through which Rubin would resign as trustee of her trust 

and Ganish would take over. Skolnick said the goal of the 

document was to allow Ganish to “deal more effectively with the 

various accounts of Flora Rubin.” Skolnick initially testified that 
17

Rubin had asked him to prepare the document. After Louis’s

counsel read portions of Skolnick’s deposition back to him, 

Skolnick revised his testimony and stated it was Ganish who had 

called him. Skolnick further testified it was Skolnick’s idea to 

substitute Ganish as trustee, not Ganish’s.

Skolnick also testified that Rubin and Ganish had a very 

close relationship, and that Ganish was a companion who drove 

her around, took her to doctors, and helped her with her finances. 

He stated that he observed this, but later acknowledged that he 

never actually saw Ganish drive Rubin around or take her to 

appointments. 

Asked about Ganish’s children, who were included in the 

later testamentary documents, Skolnick said, “I got the 

impression that [Rubin] knew and met them. I don’t remember 

exactly what she said.” It was his understanding that she met 

them and had a relationship with them. In later testimony, he 

explained that Rubin told him she stayed with Ganish at his 

home in Orange County once, “and I believe she met [Ganish’s 

children] at that time.” 

Skolnick stated that Ganish at some point told him there 

were missing bank accounts or financial assets. “There were 

many, many, many conversations about that subject.” Skolnick 

did not remember the specifics, such as which accounts were 

purportedly missing, or when Ganish and Rubin discussed this 

subject with him. Skolnick would tell them “to contact the bank 

again and say a few things. I don’t remember exactly what I said 

but it wasn’t very helpful.” 

4. Probate court’s ruling

Before issuing a final ruling, the probate court requested 

supplemental briefing on, inter alia, the burden and standard of 
18

proof. Louis submitted a brief stating that “[u]ndue influence 

must be proven by clear and convincing evidence.” Ganish stated 

the same in his written closing argument, filed before the probate 

court requested supplemental briefing. 

The probate court issued its final ruling in a written 

statement of decision. The court listed the statutory factors for 

undue influence under Welfare and Institutions Code section 

15610.70, and stated, “For a finding of undue influence to be 

made by the Court, Louis has the burden to establish undue 

influence and, if established, the burden shifts to [Ganish] to 

show that he did not unduly influence [Rubin]. [Ganish] must 

prove by a preponderance of the evidence that such did not 

occur.” 

The probate court concluded that the evidence established 

Ganish had unduly influenced Rubin. The court stated, 

“Testimony from multiple witnesses was consistent that, after 

only a short time of Flora Rubin’s family becoming aware of 

[Ganish], [Ganish] moved in with [Rubin], began isolating her 

from her extensive family, and eventually began firing her caregivers/care providers—making himself the only person she had 

to rely on.” The court noted evidence that Ganish “even 

controlled . . . [Rubin’s] medicinal regimen” and had “removed 

[Rubin] from the hospital against doctor’s orders.” The court 

continued, “Evidence at trial showed that [Rubin], after knowing 

[Ganish] for only a short time, and after decades of planning to 

leave her Estate amongst her large family and charities, 

suddenly began executing a succession of new Testamentary 

Documents, each benefitting [Ganish] more and more until 

virtually all of [Rubin’s] Estate was left to [Ganish].”
19

The probate court summarized and expressly found 

credible the testimony of Waliany, Barbara, Blair, Louis, 

Williams, and Foreman. It expressly found Ganish’s testimony 

not “credible or forthright,” and belied by other evidence such as 

the recordings of the calls with Transamerica. It further found 

that attorney Skolnick “had minimal personal knowledge about 

[Rubin’s] family or her private life,” and “[h]is testimony was 

contradictory” and in some cases revised on further examination. 

The probate court rejected the notion of a “rift between 

[Rubin] and her family” or that Rubin was angry at Louis 

because of his unpaid loan. The court found that, “until [Ganish] 

isolated [Rubin], there was a continuous and warm relationship 

between Louis and [Rubin], during the entirety of their lives, 

including after the loan.” The court noted evidence “that 

[Ganish] actively poisoned the relationship between [Rubin] and 

her family.” 

The probate court expressly “ma[de] no findings as to lack 

of [testamentary] capacity.” 

The probate court ruled invalid the September 13, 2012 

Third Amended and Restated Flora Rubin Trust and 

accompanying will, and the October 23, 2012 amendment to that 

trust. The probate court further ruled invalid the Second 

Amended and Restated Flora Rubin Trust, purportedly dated 

October 4, 2011. The probate court granted Louis’s petition to 

admit the June 13, 1995 will to probate, and appointed Louis as 

personal representative. 

Ganish timely appealed. 

STANDARD OF REVIEW

“ ‘In reviewing a judgment based upon a statement of 

decision following a bench trial, we review questions of law 
20

de novo,’ ” and “ ‘apply a substantial evidence standard of review 

to the trial court’s findings of fact.’ ” (Ribakoff v. City of Long 

Beach (2018) 27 Cal.App.5th 150, 162.) “When reviewing a 

finding that a fact has been proved by clear and convincing 

evidence, the question before the appellate court is whether the 

record as a whole contains substantial evidence from which a 

reasonable fact finder could have found it highly probable that 

the fact was true. In conducting its review, the court must view 

the record in the light most favorable to the prevailing party 

below and give appropriate deference to how the trier of fact may 

have evaluated the credibility of witnesses, resolved conflicts in 

the evidence, and drawn reasonable inferences from the 

evidence.” (O.B., supra, 9 Cal.5th at pp. 1011–1012.) In

deferring to the trier of fact’s determinations as to the credibility 

and weight of the evidence, we disregard evidence contrary to the 

judgment. (Schmidt, supra, 44 Cal.App.5th at p. 582.)

DISCUSSION

A. Governing law

A person may contest the validity of a testamentary 

instrument on the basis that it was a product of undue influence. 

(See Rice v. Clark (2002) 28 Cal.4th 89, 96 (Rice).) Under the 

common law, “[u]ndue influence is pressure brought to bear 

directly on the testamentary act, sufficient to overcome the 

testator’s free will, amounting in effect to coercion destroying the 

testator’s free agency.” (Ibid.) 

The Legislature has provided a statutory definition of 

undue influence in the Welfare and Institutions Code: 

“[E]xcessive persuasion that causes another person to act or 

refrain from acting by overcoming that person’s free will and 
21

results in inequity.” (Welf. & Inst. Code, § 15610.70, subd. (a).)8

This statutory definition applies under the Probate Code as well, 

where it is intended to “supplement the common law meaning of 

undue influence without superseding or interfering with the 

operation of that law.” (Prob. Code, § 86.) 

The party contesting a testamentary instrument bears the 

burden of proving undue influence by clear and convincing 

evidence. (Doolittle v. Exchange Bank (2015) 241 Cal.App.4th 

529, 545.)9 A party may prove undue influence based on 

circumstantial evidence, and need not show “direct evidence of 

undue influence at the moment [a] decedent signed the trust 

instruments.” (Lintz v. Lintz (2014) 222 Cal.App.4th 1346, 1355

(Lintz).) 

B. Ganish fails to show the probate court misapplied 

the standard of proof

Ganish contends the probate court failed to apply the 

heightened standard of proof of clear and convincing evidence, 

instead deciding the case under the standard of preponderance of 

evidence. Ganish’s argument appears to be premised on the fact 

8 Unspecified statutory citations are to the Welfare and 

Institutions Code.

9 Circumstances may give rise to a presumption of undue 

influence, for example upon a showing that the beneficiary had a 

confidential relationship with the testator, actively participated 

in the procuring of the testamentary instrument, and unduly 

benefitted under the instrument. (Rice, supra, 28 Cal.4th at 

pp. 96–97.) The probate court did not rely on a presumption to 

resolve the instant case, as Ganish acknowledges, and thus the 

burden was on Louis to prove undue influence by clear and 

convincing evidence.
22

that the probate court never expressly stated it was applying the 

heightened standard. We reject this argument.

It is true that the probate court never expressly stated 

what standard of proof applied to Louis’s showing of undue 

influence. Rather, it stated, “For a finding of undue influence to 

be made by the Court, Louis has the burden to establish undue 

influence and, if established, the burden shifts to [Ganish] to 

show that he did not unduly influence [Rubin]. [Ganish] must 

prove by a preponderance of the evidence that such did not 

occur.” 

Ganish fails to identify any authority that it is reversible 

error for a probate court not to state expressly the standard of 

proof in its written decision. “We presume the trial court knew 

and properly applied the law absent evidence to the contrary.” 

(McDermott Will & Emery LLP v. Superior Court (2017) 

10 Cal.App.5th 1083, 1103.) That presumption is particularly 

appropriate here, where the probate court specifically requested 

briefing on the standard of proof, and both parties agreed the 

proper standard was clear and convincing evidence. There is no 

reason to believe the probate court misapplied the standard of 

proof merely because it did not state the standard in its written 

decision.

Nor can we conclude that, in stating that Ganish’s standard 

of proof was preponderance of the evidence, the probate court

applied that standard to Louis as well. Indeed, the fact that the 

probate court specifically and separately noted Ganish’s standard 

of proof suggests that it was not applying that standard to Louis.

Further reinforcing our conclusion is the statement of

decision itself, which makes clear the probate court found the 

evidence overwhelmingly favored Louis. The probate court
23

devoted approximately four single-spaced pages to summarizing 

the evidence upon which it relied, stating repeatedly how credible 

it found Louis’s witnesses and how not credible it found Ganish’s 

testimony. The decision leaves little doubt that the probate court

was thoroughly convinced that Ganish unduly influenced Rubin.

Ganish’s cited authorities are inapposite. Estate of Trikha

(2013) 219 Cal.App.4th 791 reversed a probate court’s ruling that 

the appellant had failed to rebut a statutory presumption that his 

father had revoked his will by destroying it. (Id. at pp. 793–794.) 

In concluding the appellant had failed to rebut the presumption, 

the probate court stated expressly in its written decision that it 

“ ‘weighed the evidence and credibility of the witnesses.’ ” (Id.

at p. 807.) The Court of Appeal held this was error, because the 

law required that the appellant only provide substantial evidence 

to rebut the presumption, and “ ‘[t]he substantial evidence test 

does not ask what proposed facts are more likely than not to be 

the true facts.’ ” (Ibid.) Thus, the probate court incorrectly 

“evaluated whether [the appellant’s] evidence persuaded it that 

[the father] did not destroy his will, rather than focusing on 

whether his evidence constituted substantial evidence negating 

the revocation presumption.” (Ibid.) 

Estate of Trikha, which involved a legal error apparent on 

the face of the probate court’s written decision, has no application 

here, where the written decision gives no indication of any legal 

error.

In Lintz, supra, 222 Cal.App.4th 1346, the appellate court 

concluded the probate court erroneously failed to apply a 

presumption of undue influence based on the parties’ relationship 

as spouses, because there was “no indication in the record . . . 

that the probate court applied the presumption.” (Id. at p. 1353.)
24

In the instant case, in contrast, the probate court’s statement of 

decision gives us no reason to think it applied the wrong 

standard.

Estate of Truckenmiller (1979) 97 Cal.App.3d 326 stated 

that undue influence must be proven by clear and convincing 

evidence, and “[u]ndue influence will not be inferred from ‘slight 

evidence.’ ” (Id. at p. 334.) Again, the statement of decision in 

the instant case provides extensive explanation of the probate 

court’s ruling, including the evidence upon which it relied. The 

probate court did not infer undue influence from “ ‘slight 

evidence.’ ”

C. There is substantial evidence of undue influence

Ganish claims there was insufficient evidence to support a 

finding of undue influence. We disagree.

The Welfare and Institutions Code provides a list of factors 

that “shall be considered” “[i]n determining whether a result was 

produced by undue influence.” (§ 15610.70, subd. (a).) These 

factors are incorporated into the Probate Code. (Prob. Code, 

§ 86.) 

First, “The vulnerability of the victim. Evidence of 

vulnerability may include, but is not limited to, incapacity, 

illness, disability, injury, age, education, impaired cognitive 

function, emotional distress, isolation, or dependency, and 

whether the influencer knew or should have known of the alleged 

victim’s vulnerability.” (§ 15610.70, subd. (a)(1).) 

Second, “The influencer’s apparent authority. Evidence of 

apparent authority may include, but is not limited to, status as a 

fiduciary, family member, care provider, health care professional, 

legal professional, spiritual adviser, expert, or other 

qualification.” (§ 15610.70, subd. (a)(2).)
25

Third, “The actions or tactics used by the influencer. 

Evidence of actions or tactics used may include, but is not limited 

to, all of the following: [¶] (A) Controlling necessaries of life, 

medication, the victim’s interactions with others, access to 

information, or sleep. [¶] (B) Use of affection, intimidation, or 

coercion. [¶] (C) Initiation of changes in personal or property 

rights, use of haste or secrecy in effecting those changes, effecting 

changes at inappropriate times and places, and claims of 

expertise in effecting changes.” (§ 15610.70, subd. (a)(3).)

Finally, “The equity of the result. Evidence of the equity of 

the result may include, but is not limited to, the economic 

consequences to the victim, any divergence from the victim’s prior 

intent or course of conduct or dealing, the relationship of the 

value conveyed to the value of any services or consideration 

received, or the appropriateness of the change in light of the 

length and nature of the relationship.” (§ 15610.70, subd. (a)(4).) 

“Evidence of an inequitable result, without more, is not sufficient 

to prove undue influence.” (Id., subd. (b).)

Based on these factors, we conclude the record “contains 

substantial evidence from which a reasonable fact finder could 

have found it highly probable that” Rubin’s later testamentary 

instruments were the product of undue influence. (O.B., supra, 

9 Cal.5th at p. 1011.) We discuss each factor in turn.

1. Vulnerability of the victim

At the time Rubin executed the challenged testamentary 

documents, she met many of the indicia of vulnerability under 

section 15610.70, subdivision (a)(1). She was elderly—100 years 

when she executed the third amended and restated trust—and 

disabled, being completely blind.
26

Rubin also suffered from illness, having been hospitalized 

multiple times in the preceding years, and was dependent on

caregivers and others for her needs. Barbara and Blair testified 

that during a visit with her she was incoherent and Ganish had 

to carry her from the bedroom.

Ganish argues evidence in the record indicates that Rubin 

was “independent, stubborn and strong-willed,” and there was no 

indication of “diminished mental capacity.” Assuming arguendo 

Ganish accurately characterizes this evidence, the probate court

found it either not credible or outweighed by evidence supporting 

a finding that Rubin was vulnerable. Under the applicable

standard of review, we must defer to that finding. (Schmidt,

supra, 44 Cal.App.5th at pp. 581–582 [on substantial evidence 

review, appellate court defers to trial court’s credibility findings 

and does not reweigh evidence].) 

2. Influencer’s apparent authority

Section 15610.70, subdivision (a)(2), lists as examples of 

those with “apparent authority” both a “care provider” and a 

“family member.” Rubin and Ganish referred to Ganish as her 

“caregiver,” and by Ganish’s own admission in the last few years 

of Rubin’s life he was her sole caregiver, the other caregivers 

having left or been fired. Although Ganish argues he was not a 

family member, his testimony that they were “like husband and 

wife” belies this claim. Ganish concedes that he “had an 

opportunity to control her testamentary actions.” 

3. Influencer’s actions or tactics

Ganish’s “actions or tactics” in regard to Rubin provided 

substantial evidence of undue influence. (§ 15610.70, 

subd. (a)(3).) 
27

i. Control

There was substantial evidence that Ganish was 

“[c]ontrolling [Rubin’s] necessaries of life, medication, [her] 

interactions with others, [and] access to information.” 

(§ 15610.70, subd. (a)(3)(A).) The evidence showed that Ganish 

gradually eliminated from Rubin’s life those she had previously 

relied on for affection or assistance, thus making her ever more 

dependent on him. Multiple family members testified that 

Ganish made it difficult for them to contact Rubin, and that he 

never informed them when she was in the hospital, thus leading 

her to believe Ganish cared for her more than her family. 

Williams and Louis testified that Ganish threatened to leave 

Rubin if she did not choose him over her family members. 

Ganish objected to Foreman helping Rubin with her finances and 

claimed that Ganish was in charge of Rubin’s estate and bonds,

after which Rubin no longer sent her financial statements to 

Foreman. Ganish also got rid of Rubin’s caregivers, although he 

testified that Rubin loved her caregiver Waliany, and Waliany 

loved Rubin. Ganish pressured Rubin to end her relationship 

with her financial advisor Yudis, calling him a “crook.” 

The evidence also showed Ganish was controlling Rubin’s 

medical care. Multiple witnesses testified that Ganish 

discouraged Rubin from taking prescribed medication, and 

instead directed her to use supplements provided by him. By his 

own admission, he took her from the hospital against doctor’s 

orders. In doing so, he locked the door to prevent medical 

personnel from interfering as he personally removed her IV and 

catheter.

The probate court could infer from the evidence that 

Ganish was misleading Rubin about her financial situation. 
28

Foreman testified that Rubin was in a panic believing, 

incorrectly, she had no money left, and Ganish told a 

Transamerica representative, with Rubin present, that Rubin 

had lost money. Skolnick testified that he had many 

conversations with Ganish and Rubin about purportedly missing 

money. The probate court reasonably could infer Ganish misled 

Rubin in order to make her fearful and further dependent on him, 

including in regard to financial matters.

Ganish challenges the conclusion that he separated Rubin 

from her family, noting that she continued to have contact with 

family members after she met Ganish, and that it was Louis that 

decided not to continue seeing her, not Rubin. This disregards 

the evidence from multiple family members that Ganish 

repeatedly interfered with their ability to reach Rubin, that he 

failed to inform them when she was hospitalized, and that he 

forced her to choose between him and Louis.

Ganish argues that evidence showed Rubin’s health 

flourished under his care, and that he only took her from the 

hospital out of concern that she had been overmedicated and was 

in danger of dying if she remained. The probate court found 

Ganish’s testimony not credible, a determination to which we 

must defer. Ganish claims there was no evidence he prevented 

Rubin from taking her prescribed medication, but Barbara, Blair, 

and Foreman all testified that Rubin and/or Ganish had told 

them she had either stopped or Ganish had told her to stop 

taking medication. Multiple witnesses also testified that Ganish 

or Rubin told them of Ganish’s strong aversion to Western 

medicine, calling it “poison.”

Ganish notes that Rubin remained with her financial 

advisor Yudis for some time over Ganish’s objection, and that 
29

there was no evidence that Ganish ever took money from Rubin 

or acted improperly in regard to her financial accounts. He 

suggests this evidence establishes that he did not unduly 

interfere in her financial decisions. Although Rubin apparently 

resisted Ganish’s entreaties to rid herself of Yudis for a time, it is 

undisputed she parted ways with Yudis years before she died. 

Further, the fact that Ganish had the patience to wait for Rubin 

to die before availing himself of her finances does not obviate the 

possibility of undue influence. The evidence cited by Ganish does 

not undercut the probate court’s ruling. 

ii. Use of affection, intimidation, or coercion

The evidence showed Ganish used “affection, intimidation, 

or coercion” to manipulate Rubin. (§ 15610.70, subd. (a)(3)(B).) 

Ganish, as Rubin’s boyfriend, offered affection, then threatened 

to withdraw it and leave her if she did not choose him over her 

family, as testified to by Williams and Louis.

iii. Initiation of changes in personal or 

property rights

There is little direct evidence that Ganish initiated any of 

the changes Rubin made to her estate plan. (See § 15610.70, 

subd. (a)(3).) Rubin’s attorney Skolnick testified that Ganish was 

present during Skolnick’s discussions with Rubin, but that any 

changes to the estate plan came from Rubin herself. Skolnick 

testified the 2014 proposed change of trustee arose after Ganish 

contacted Skolnick, although Skolnick testified the change was 

his idea, not Ganish’s.

Given, however, the evidence set forth above of Ganish’s 

near-total control over Rubin’s life, the probate court reasonably 

could infer that Rubin was not making decisions without heavy 
30

input from Ganish, and that it is highly unlikely she initiated on 

her own the dramatic changes to her estate plan in her last few 

years of life. This is reinforced by the fact that Ganish was 

present when Rubin and Skolnick modified the estate documents, 

and that at least one proposed change arose from a conversation 

between Ganish and Skolnick. 

As for Skolnick’s view that Rubin made her estate choices 

freely, the probate court found Skolnick lacked personal 

knowledge of Ganish’s and Rubin’s relationship, and did not find 

Skolnick’s testimony persuasive. Again, we must defer to that 

determination. 

4. Equity of the result

As for the equity resulting from the changes to Rubin’s 

estate plan, we focus on the “divergence from the victim’s prior 

intent or course of conduct or dealing.” (§ 15610.70, subd. (a)(4).) 

Rubin’s testamentary documents executed between 1995 and 

2004 made significant distributions to friends and family, 

particularly Foreman, with very specific gifts to charity. The 

third amended and restated trust, executed in 2012 when Rubin 

was 100 years old, changed all this, giving virtually everything to 

Ganish except for greatly reduced gifts to Foreman and two other 

beneficiaries. Rubin’s charitable gift was completely eliminated, 

and she specifically disinherited Louis, who previously had been 

entitled to a significant share of her estate as well as the return 

of his promissory note. Rubin also favored Ganish’s children over 

her own family, appointing them as successor beneficiaries to 

Ganish, as well as successor trustees and executors.

There is nothing per se suspect about a person gifting 

substantial assets to a romantic partner met later in life, in the 

absence of other indicia of undue influence. Here, however, 
31

Rubin’s almost total shift away from her previous intent toward a 

plan that greatly benefitted Ganish and his family, at the 

expense of Rubin’s own family, supports an inference of undue 

influence, especially in light of the other factors under 

section 15610.70 discussed above.

Ganish in his appellate briefing focuses on Louis, 

particularly the evidence that Louis had no contact with Rubin 

after 2009, and that Rubin was upset with Louis for not paying 

back the loan. Ganish argues this evidence shows that he, and 

not Louis, was the proper recipient of Rubin’s bounty. 

The probate court found the evidence of Rubin’s anger with 

Louis not credible and/or outweighed by the evidence of Louis’s

longstanding and warm relationship with Rubin prior to 2009. 

We note that Louis testified he had paid Rubin $275 in interest 

monthly from 1987 to 2009, and therefore had given her far more 

than the $30,000 balance on the loan. Further, up until the third 

amended and restated trust, Flora had always intended to forgive 

the loan upon her death, which is inconsistent with her being 

angry about the unpaid loan.

As for Louis’s lack of contact with Rubin after 2009, the 

probate court reasonably could infer this was because of Ganish’s 

efforts to drive a wedge between them. Even assuming Rubin 

was upset with Louis for breaking ties with her, that anger would 

be a result of Ganish’s undue influence, and not something from 

which he should be allowed to benefit.

Regardless, Rubin’s feelings toward Louis do not explain 

her apparent change of heart toward Foreman, who kept in touch 

with Rubin on a weekly basis including in her last years of life, or 

the other family members she cut out of the third amended and 

restated trust. The record amply supports the conclusion that, 
32

before and even after Ganish came into the picture, Rubin had 

frequent and happy interactions with her extended family, and 

there is no reason to think she would so dramatically cut them 

out of her estate planning absent coercion from Ganish.

As a general argument against the probate court’s undue 

influence finding, Ganish contends the probate court “did not find 

that [Ganish] exerted undue influence over [Rubin’s] act of 

executing the 2012 testamentary amendments or that he 

somehow overcame her substantial and stubborn free will and 

substituted his own will for hers.” Rather, “[t]he closest the 

Court came was to say that ‘after knowing Victor for only a short 

time,’ [Rubin] ‘suddenly began’ changing her estate plan to 

benefit [Ganish].” Ganish notes that the 2004 changes occurred 

after he met Rubin, and did not benefit him at all, and the later 

changes that did benefit him arose after they had known each 

other for a decade. 

We disagree with Ganish’s characterization of the 

statement of decision. The thrust of the ruling is that the probate 

court found that Ganish had methodically dominated Rubin’s life 

by separating her from family, caregivers, and advisors and 

taking over her medical and other affairs. Viewed through that 

lens, the dramatic changes to Rubin’s testamentary instruments 

in her extremely advanced years strongly indicate undue 

influence. The statement of decision is clear on that point. 

The fact that Ganish and Rubin were together for some 

years before she executed the instruments in his favor only 

reinforces the point, because it establishes that he had time to 

insinuate himself into her life and slowly take it over. 
33

5. Ganish’s cited cases are distinguishable

Ganish cites several cases in which courts reversed findings 

of undue influence for lack of substantial evidence. As we 

explain, these cases do not contain facts analogous to those in the 

instant case, and are inapposite.10

In Estate of Llewellyn (1948) 83 Cal.App.2d 534 (Llewellyn), 

the decedent in 1945 executed a new will in favor of his brother 

while in the hospital after his brother had visited him “two or 

three times a day” and assisted him in procuring an attorney and 

witnesses. (Id. at pp. 540–541, 558.) The will was “entirely 

inconsistent” with two earlier wills executed by the decedent. 

(Id. at p. 545.) The contestants to the will, the decedent’s niece 

and nephew, argued that prior to 1942 the brother had little 

interest in the decedent, but after their sister died “he then 

became a frequent visitor to [the decedent] and commenced a 

systematic campaign to unduly influence the latter . . . .” 

(Id. at p. 563.)

The Court of Appeal concluded that the evidence 

“amounted to no more than a showing that [the brother] was so 

situated as to have an opportunity to unduly influence the mind 

of the testator and at the most, that the actions of [the brother] 

might be described as suspicious.” The court concluded “such 

evidence is entirely insufficient to support the finding of the 

jury.” (Llewellyn, supra, 83 Cal.App.2d at p. 564.) “Before a 

testamentary document will be overthrown because of the 

exercise of undue influence, the proven circumstances must be 

10 The cases cited by Ganish are factually dense. We focus 

on those facts Ganish identifies as pertinent to the instant 

appeal, and do not purport to summarize the cases in full.
34

inconsistent with voluntary action on the part of the testator.” 

(Id. at p. 566.)

Estate of Welch (1954) 43 Cal.2d 173 (Welch) concerned a 

challenge to a will executed by decedent Myrtle in favor of her 

brother Arthur. Arthur had convinced Myrtle to let him move in 

with her after Myrtle’s husband died, over the fierce objections of 

their sister Geraldine. (Id. at pp. 176–177.) A few weeks later, 

Arthur and Myrtle executed wills together, each leaving the 

entirety of their property to the other. (Id. at p. 177.) 

Subsequently there were disputes with relatives over living 

arrangements of Arthur and Myrtle, and “Arthur systematically 

excluded Geraldine and her sons from the house.” (Ibid.) There 

was also evidence that, in the weeks before Myrtle died, more 

than four years after she executed the contested will, Arthur 

did not care for her well or arrange a proper burial. (Ibid.)

The Supreme Court reversed the jury’s finding of undue 

influence for lack of sufficient evidence. (Welch, supra, 43 Cal.2d 

at p. 180.) Among other things, the court noted that “Myrtle’s 

mental and physical condition was not shown to have been such 

as to permit a subversion of her freedom of will or to negate her 

independent management of her own affairs. On the contrary, so 

far as appears from the record, Myrtle was at all times a clear 

thinking, deliberate woman, aware of her property holdings and 

financial situation, and it was not until a few days before her 

death that her general condition deteriorated.” (Id. at p. 178.)

In Estate of Wright (1963) 219 Cal.App.2d 164 (Wright), the 

Court of Appeal held that the probate court erred in applying a 

presumption of undue influence based on the beneficiary’s 

confidential relationship with the decedent. (Id. at p. 169.) The 

holding rested largely on the absence of evidence that the 
35

beneficiary participated in preparing the contested codicil, a 

necessary element of the presumption. (Id. at pp. 169–170.) 

That the beneficiary transmitted the decedent’s instructions to 

the attorney and was present when the decedent executed the 

codicil were insufficient to establish the necessary active 

participation. (Id. at p. 170.) The court further held that the fact 

that the codicil preferenced the beneficiary, a friend of the 

decedent, over the decedent’s blood relatives did not establish 

that the codicil’s provisions were “unnatural” such that the 

beneficiary unduly profited thereby. (Id. at pp. 170–171.)

Estate of Mann (1986) 184 Cal.App.3d 593 similarly held 

the evidence did not support a presumption of undue influence 

based on a confidential relationship between the beneficiary and 

decedent. (Id. at pp. 606–609.) The fact that the will preferenced 

one nephew over another did not render it unnatural. (Id. at 

pp. 606–607.) Even if it did, the evidence that the beneficiary 

“urged [the decedent] to make a will ‘if she was so inclined,’ took 

her to an attorney for this purpose, and was present at the 

execution of the will” was insufficient to show the beneficiary 

“actively procured execution of the will.” (Id. at pp. 607–608.)

None of these cases presents facts similar to those of the 

instant case, namely a beneficiary who over a period of years 

used deception and the threat of withdrawal of affection to 

control an extremely elderly and blind woman and isolate her

from those who had cared for her, thus making her fully 

dependent on and devoted to him. Whatever evidence of undue 

influence was lacking in Ganish’s cited cases is fully present here.

Wright and Mann are additionally inapposite in that both 

concern a presumption of undue influence arising from a 

confidential relationship. As Ganish concedes, the probate court
36

in the instant case did not rely on that presumption, and instead 

placed the burden on Louis to prove his case. 
37

DISPOSITION

The orders are affirmed. Louis Cooper is awarded his costs 

on appeal.

NOT TO BE PUBLISHED.

BENDIX, J.

We concur:

ROTHSCHILD, P. J.

CHANEY, J.