We often get questions about contesting a will because of Undue influence in Florida. Undue influence is a cause of action that is used to challenge the validity of a will, trust, or other testamentary document. You can not challenge a will until the person who has created it has died. The conduct of a person charged with undue influence must amount to over-persuasion, duress, force, coercion, or artful or fraudulent contrivances to such a degree that there is destruction of the free agency and will power of the one making the will.
The primary case on this topic is the Estate of Carpenter. This case holds that to prove undue influence in Florida with a will or trust, the person claiming the undue influence must show that the decedent ( the person who died) was unduly influenced by 1) a substantial beneficiary under the contested document 2) and that beneficiary had a confidential relationship with the decedent and 3) actively procured the will or trust.
In providing this the Florida Supreme Court provided seven criteria to help determine undue influence:
- presence of the beneficiary at the execution of the will/trust;
- presence of that beneficiary on occasions when the testator expressed a desire to make the will/trust;
- recommendation by the beneficiary of an attorney to draw the will/trust;
- knowledge by the beneficiary of the contents of the will/trust prior to its execution;
- giving of instructions on preparation of the will by the beneficiary to the attorney drawing the will;
- securing of witnesses to the will by the beneficiary; and
- physical possession of the will by the beneficiary after its execution.
While active procurement is necessary to prove undue influence, it may be necessary to look at other factors which may provide for the active procurement. There are many newer cases that have addressed other ways of proving these factors and it is important to fully evaluate the situation.
The presumption of undue influence is a rebuttable one under F.S. §733.107. Once proper execution of the Will(or trust) has been established, the individual challenging the document has the burden of presenting evidence to prove the elements of undue influence by a preponderance of the evidence (more likely than not). If the case of undue influence has been established by the contestant, the burden of proof then shifts to the proponents of the will, who provide evidence that the will was not the result of undue influence. Proving undue influence is difficult but proving that it did not occur is also difficult and expensive. The outcome of many cases depends on who has the burden of proof.
Undue influence can be a very expensive claim to pursue and unfortunately it will not make financial sense in all cases. For larger cases where the claims are in excess of $500,000 it may be possible to hire lawyers to pursue these claims on a contingency basis. If you suspect that someone used undue influence to change estate planning documents in which you lost a substantial inheritance, you should contact an Florida trust litigation or Florida will contest lawyer to discuss your situation.