In the context of a Florida probate dispute, asserting “undue influence” is a way of attempting to invalidate a last will and testament. It is normally claimed by someone who is not a beneficiary of a will but believes they should be, or by a beneficiary who believes he is entitled to more than what the will provides – in other words, by someone who stands to gain if the will is invalidated.
Under the definition supplied by the Florida Second District Court of Appeal, undue influence consist of the use of “over-persuasion, duress, force, coercion, or artful or fraudulent contrivances to such a degree that there is destruction of the free agency and willpower of the one making the will. ”
Elements of an Undue Influence Claim
An element of a claim is something you have to prove to establish that claim. In Florida, an undue influence claim consists of three elements:
- The person who is accused of undue influence (the “beneficiary”) must stand to receive a substantial benefit under the will. This is normally proven by simply looking at the terms of the will. Whether the benefit is “substantial,” of course, is ambiguous and subject to the interpretation of the court.
- The beneficiary must have enjoyed a confidential relationship with the person whose will is being contested (the “testator”). This can be proven by written correspondence, witness testimony, etc. “Confidential” means, at the very least, that the testator trusted the beneficiary enough to share secrets with him.
- The beneficiary must have been “active in the procurement of the will.” In other words, the beneficiary must have been in a strong position to influence the testator’s decisions about the terms of the will.
The Carpenter Factors
The first two elements above are normally fairly easy to prove. It is the third element where lawyers argue. The 1970 Florida Supreme Court case In re Estate of Coketine Bray Carpenter, Deceased listed seven sub-elements that a court can use to decide whether the third element has been met, the beneficiary having been “active in the procurement of the will:”
- Whether the beneficiary was present when the will was executed.
- Whether the beneficiary was present when the testator spoke of wanting to make a will.
- Whether the beneficiary recommended the attorney who drafted the will. This factor could become even more persuasive if it could be established that the beneficiary, rather than the testator, actually paid the attorney.
- Whether the beneficiary knew the contents of the will before it was executed (indicating that he may have been responsible for suggesting the content to the testator).
- Whether the beneficiary gave instructions to the attorney who was drafting the will. This factor is especially persuasive if the beneficiary instructed the attorney on matters relating to the beneficiary’s own inheritance under the will.
- Whether the beneficiary procured the witnesses who signed the will. Were they friends of the beneficiary but not the testator? A beneficiary exerting undue influence might want to exclude any of the testator’s other trusted confidants.
- Whether the beneficiary kept the will in his possession after it was executed, especially if there was no particular reason why the testator could not have retained possession of it.
However, a Florida probate court may find undue influence even if these factors are not all present, and it may also look to circumstantial factors beyond these.
The following additional factors are frequently recognized by Florida probate courts as relevant in whether the beneficiary was active in the procurement of the will:
- Whether the beneficiary isolated the testator from family members who would normally be expected to be beneficiaries, and spoke ill of them to the testator.
- Whether a great difference in mental ability (such as intelligence or diminished capacity) in the beneficiary’s favor existed between the testator and the beneficiary.
- Whether the actual terms of the will were unreasonable.
Reversing the Burden of Proof
Proving all three elements of an undue influence claim does not establish the claim, though, at least not by itself. Instead, it reverses the burden of proof, which means that the beneficiary must then respond and show that there was no undue influence.
Consequences of Invalidating a Will
What happens to the testator’s property when the will is invalidated? When that happens, the testator is treated as if he or she had died without making a will, and Florida intestate succession rules apply. Under Florida intestate succession rules, the testator’s property will be distributed in the following manner:
- The surviving spouse gets everything if the testator has no living direct descendants (children, grandchildren, etc).
- A surviving spouse gets everything if the testator and the surviving spouse had children but there were no step-children on either side.
- If the testator is survived by a spouse and his own children who are his spouse’s step-children, the spouse gets 50 percent and the children share the other 50 percent equally.
- If the testator leave direct descendants but no spouse, then the descendants share the estate equally.
- If the testator left no spouse and no direct descendants, then the estate is shared by the progressively distant relatives including parents, siblings, etc. (Space limitations do not permit a full listing of the rules that apply to more distant relatives)
If you are considering asserting an undue influence claim, make sure to review the Florida intestate succession rules to carefully calculate whether you would be better off invalidating the will or letting the will pass through probate unchallenged.
We’re Ready When You Are
If you are involved in a probate dispute and you believe you have an undue influence claim or if you anticipate having to defend against such a claim, contact the probate attorneys at Beller & Bustamante either online or by calling (904) 288-4414. We serve clients throughout the Jacksonville metropolitan area, St. Augustine, Ponte Vedra Beach, St. Johns County, Clay County.