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Florida Probate Litigation - Undue Influence

Do you have a case of undue influence in Florida? 

In Florida, a Will or Trust is void if it was procured through fraud, duress, undue influence, or mistake. 

What is undue influence?

Undue influence occurs when the testator (the person making the will) is induced to act contrary to his or her own wishes and the will provisions are another person's wishes, not actually the testator's. 

It is important to know that it is not just any influence. Simply asking your grandparents for a larger inheritance than your siblings is influence, but doesn't necessarily rise to the level of being undue influence. The term undue contemplates that the testator's mind was was not under their control, but was instead controlled by persuasion, pressure, or outside influences that were so strong that he or she did not act on their own. 

How do I know if there was undue influence in Florida?

The Supreme Court of Florida has actually created a list of factors that courts consider to be relevant to evaluating whether there has been undue influence in Florida. 

The factors are:

  1. Was the alleged undue influencer present when the will was signed?
  2. Was the alleged undue influencer present when the testator expressed a desire to make a will? 
  3. Did the alleged undue influencer reccommend the lawyer that drafted the will?
  4. Did the alleged undue influence know what the will said before it was signed?
  5. Did the alleged undue influencer give the lawyer instructions on preparing the will?
  6. Did the alleged undue influencer pick the witnesses of the will?
  7. Did the alleges undue influencer keep the will after it was signed?

In re Carpenter's Estate, 253 So. 2d 697, 702 (Fla. 1971)

These factors are critical to a case for undue influence. 

Why is it so critical? Because undue influence is very difficult to prove through direct evidence. By its very nature, undue influence is usually done secretly. Because undue influence can often be so subtle, the Florida Supreme Court has created a unique system to bringing a claim for undue influence. The person seeking to invalidate the will usually has the burden of establishing undue influence. But, in Florida, there is actually a presumption that a will or trust was procured through undue influence when the alleged undue influencer (1) occupied a confidential relationship with the testator, (2) was a substantial beneficiary, and (3) was active in processing the instrument. Newman v. Brecher, 887 So. 2d 384, 386 (Fla. 4th DCA 2004)

This first two elements are pretty straightforward. Florida courts have a very broad standard for determining whether a confidential relationship existed. It can be a technical fiduciary relationship (like a power of attorney or formal caregiver) or can be based on informal relationships where one trusts in and relies upon another. 

The second element, whether the alleged undue influencer was a substantial beneficiary, doesn't necessarily mean they needed to receive a certain percentage of the estate. I think we can agree that a 1% share of a billion dollar estate is a substantial sum of money. 

The third element is where these factors are critical. But, what does “active in processing” the will  mean? Thankfully, the Florida Supreme Court's factors lead to the evaluation of active procurement.  If a person challenging a will can establish some (not all!) of these factors, then the court will find the third element is met.

What does the presumption actually do?

The presumption actually switches who is required to prove their case. Essentially, the presumption means that the court begins the case with the assumption there was undue influence. This forces the undue influencer to prove that he/she did not unduly influence the testator. To put this into perspective, let’s look at another presumption in the law. You get into a car accident. You were at an intersection, and a car rear-ends you.  The law presumes that the car that rear-ended you is at fault. Why? because they should have seen your car in front of theirs and had the opportunity to stop. So, in order for the "rear-ender" to prove they are not at fault, they have to prove the accident wasn’t their fault. Maybe you stopped abruptly at a green light after weaving right into their lane.

Contact us

If you believe that there has been undue influence or if you have been wrongly accused of unduly influencing someone, please contact us. PersanteZuroweste, we pursue and defend undue influence claims for wills and trusts. If you believe you need a Probate or Trust Litigation law firm in Pinellas, Pasco, or Hillsborough County, please do not hesitate to contact us at (727) 796-7666.