Undue influence is a common ground for will contests in Florida probate matters. In an undue influence case, the person contesting the will argues that it should be set aside since the decedent was unduly influenced by a substantial beneficiary. Undue influence can apply to wills or to trust-based estate plans that incorporate both a will and a trust.
A Florida Last Will and Testament will only be set aside for undue influence if the influence amounts to “over persuasion, duress, force, coercion, or artful or fraudulent contrivances to such an extent that there is a destruction of free agency and willpower of the testator.” In other words, the influence must be so strong that it overpowers the willpower of the person making the will.
To prove undue influence, the person challenging the will must prove that alleged undue influencer:
- is a substantial beneficiary of the estate plan;
- occupied a “confidential relationship” with the testator; and
- was active in procuring the will or trust.
Florida probate law defines a confidential relationship as one where there is a relation of trust and confidence between two people. Confidential relationships can be both formal and informal. Common examples of confidential relationships include guardian/ward, trustee/beneficiary, and attorney/client. A confidential relationship may also be found among family members.
The last prong (active procurement) can be difficult to prove since it usually depends on circumstantial evidence. The most important case on this issue is In re Estate of Carpenter, which identified seven factors help evaluate the issue of active procurement:
- Presence of the beneficiary at the execution of the will;
- Presence of the beneficiary on those occasions when the testator expressed a desire to make a will;
- Recommendation by the beneficiary of an attorney to draw the will;
- Knowledge of the contents of the will by the beneficiary prior to 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
- Safekeeping of the will by the beneficiary subsequent to execution.
These seven factors were set out as guidelines and were not intended to be exclusive. At least three other indications of active procurement have been identified by the courts:
- Isolating the testator and disparaging family members;
- Mental inequality between the decedent and the beneficiary; and
- The reasonableness of the will or trust provisions.
In 2002, the Florida legislature amended Florida probate law to shift the burden of proof in undue influence cases. In all will contests, the person seeking to probate the will must demonstrate that it was executed and witnesses in accordance with Florida law. Once that is done, the person contesting the will must prove the grounds for setting aside the will. The 2002 amendment clarified that the presumption of undue influence, once it arises, shifts the burden of proof.