BB King’s heirs have alleged the blues legend’s business manager has misappropriated millions of dollars and unduly influenced his estate. A lawyer representing BB King’s heirs told the press the heirs would seek to challenge the will and the actions of the manager as undue influence.
The law allows the heirs of an estate to challenge wills in cases of undue influence, fraud, or mental incapacity. The heirs of BB King’s estate have long suspected King’s manager La Verne Toney had misappropriated millions of dollars and had undue influence over his estate planning decisions. The law requires the testator to pass away before his estate or will can be challenged. Therefore, the heirs of BB King’s estate were unable to challenge the alleged undue influence until now.
Undue influence is where a beneficiary, or other party with standing, alleges a third person has so influenced the testator’s mind by persuasion that the testator did not act voluntarily when executing his will.
In Florida, the person challenging a will under a theory of “undue influence” has the burden to establish the presumption of undue influence. This means that the person being accused is given the benefit of the doubt that he or she acted appropriately unless some evidence shows otherwise. The elements of showing undue influence are:
- The person accused of undue influence is a substantial beneficiary under the will
- Occupied a confidential relationship to the decedent, and
- Was “active” in procuring the will.
The first two elements are relatively easy to prove, however the third element is where most cases of undue influence are decided. In Florida, the case that defines “active” procurement is In Re Estate of Carpenter, 253 So.2d 697 (Fla. 1971). The Florida Supreme Court listed 7 factors to help the lower courts determine if an active procurement occurred:
- Presence of beneficiary at execution
- Presence of beneficiary on occasions when the testator expressed desire to make a will
- Recommendation by the beneficiary of an attorney to draw the will
- Knowledge of contents of will by beneficiary prior to execution
- Giving instructions on preparation of a will by the beneficiary to the attorney
- Securing witnesses to the will by the beneficiary; and
- Safekeeping the will by the beneficiary subsequent to execution
In Florida, once the person challenging the will successfully convinces the court of a presumption of undue influence, the burden shifts to the person trying to admit the will.
While the trial for BB King’s estate will not take place in Florida, many of the elements of undue influence are the same in other states. If you believe undue influence or other actions may have affected a loved one’s will or trust, call the Law Office of David Goldman PLLC today to discuss how a will can be contested.