Blogs from October, 2008


Do I Have a Case? (Part Four)

As I have indicated in prior posts, there are certain categories of evidence that I look for in order to prove undue influence, which has been defined by Florida courts as conduct amounting to over persuasion, duress, force, coercion, or artful or fraudulent contrivances to such a degree that the free agency and will power of the testator is destroyed. In re Carpenter’s Estate, 253 So. 2d 697 (Fla. 1971).

In Florida, the legislature has created a presumption of undue influence.  What does this mean?

Well, in a typical lawsuit, the plaintiff bears the burden of proving his or her claims by a preponderance of the evidence. However, because so many elderly persons are vulnerable to undue influence in Florida, the legislature has shifted the burden of proof in cases where certain factors are evident. Under Florida law, where a beneficiary of a will shares a confidential relationship with the person making a will, and where the beneficiary was active in procuring the will, the law presumes that the will is the product of undue influence.

Relevant factors that held answer the issue of whether a beneficiary has actively procured a will and the presumption of undue influence was articulated by the Court in the case of Newman v. Brecher, 887 So. 2d 384 (Fla. Dist. Ct. App. 4th Dist. 2004) and include:

(a) was the beneficiary present at the execution of the will?;
(b) was the beneficiary present on those occasions when the testator expressed a desire to make a will?;
(c) did the beneficiary recommend the attorney to draft the will?;
(d) did the beneficiary know the contents of the will prior to its execution?;
(e) did the beneficiary give instructions on the preparation of the will to the attorney drafting the will?;
(f) did the beneficiary know and/or select the witnesses to the will?; and
(g) did the beneficiary keep the will or guard it or keep it a secret after its execution?

A recent case illustrates the importance of the application of the presumption of undue influence and the importance courts place on the factors listed above. In RBC Ministries v. Tomkins, 974 So.2d 569 (Fla.2d DCA 2008) it was alleged that RBC Ministries was named as a beneficiary under a will executed by the decedent, Mr. Simoneau in 1997. Another will was allegedly procured by undue influence in 2005 and was admitted to probate by the new beneficiary and personal representative, Ms. Tomkins. RBC challenged the new will and the trial court threw the case out and wouldn’t give RBC a trial. The Second District Court of Appeals reversed the trial court and held that RBC was entitled to a trial since there was evidence of undue influence, including:

(1) Ms. Tomkins, the new beneficiary, shared a confidential relationship with Mr. Simoneau.
(2) Ms. Tomkins was present at the execution of the 2005 will.
(3) Ms. Tomkins was present when Mr. Simoneau expressed a desire to make a new will.
(4) Ms. Tomkins, the new beneficiary, drafted the will on her own personal computer.
(5) Ms. Tomkins knew the content of the new will prior to its execution;
(6) Ms. Tomkins selected the witnesses.
(7) Ms. Tomkins had possession of the new will after execution.

Where there is evidence suggesting the presence of some of all of these or similar facts, Florida courts have consistently held that the person(s) challenging the new will shall be given “their day in court” and the alleged undue influencer is required to offer a reasonable explanation for why and how the new will come into existence.


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