Blogs from October, 2008


Do I Have a Case?  (Part Three)

As I have indicated in prior posts, there are certain categories of evidence that I look for in order to prove undue influence, and then the case develops and follows the facts that are discovered. Undue influence 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).

Of course, some of the first inquiries I make are (1) was the alleged victim susceptible to undue influence (i.e., advanced age, dementia, etc.) and (2) did the undue influencer have an opportunity to perpetrate wrongdoing? (3) Was there a confidential relationship between the undue influencer and the victim? (4) Was there a resulting will with an “unnatural” or disproportionate disposition of property? (5) Were there suspicious circumstances (i.e., secrecy, new attorney, etc.)

Additionally, serious consideration is given to cases where there is a last-minute will that is inconsistent with prior testamentary instruments executed by a decedent during periods where it is undisputed that the decedent was not subject to undue influence. For example, I have handled many cases where the settlor of a trust has amended the trust several times over many years but always maintained the same distributions to the named beneficiaries. When this pattern is then followed by a last-minute change that contains an “unnatural” disposition (discussed in part two) or a significant change to the long-existing distributive scheme, this is strong evidence pointing to the conclusion of undue influence.

The existence of prior wills may also be buttressed with statements by the Decedent now that the Florida Legislature has abandoned the Dead Man’s Statute. Previously, the Dead Man’s Statute prohibited interested persons from testifying regarding oral communications from a now-deceased or incompetent person. For example, in Carpenter v. Wemyss ex rel Wemyss 638 So.2d 592 (Fla. 4th DCA 1994), the application of the Deadman’s Statute prohibited testimony from interested persons regarding statements made by the decedent in connection with the alleged renewal of promissory note. The Carpenter court, however, did make it clear that the Dead Man’s Statute did not prohibit testimony regarding written transactions or written communications with the decedent. Testimony regarding nonverbal conduct, such as execution, delivery, and negotiation of a contract, is not barred by the Deadman’s Statute either, nor is testimony regarding the decedent’s mental capacity, nor testimony as to services performed by the interested person.

The holding of the Carpenter court is now codified in Florida by a new exception to the hearsay rule that allows for the introduction into evidence of prior written or oral statements previously made by an unavailable declarant when another testimony on the same subject has already been introduced. See Fla.Stat. §90.804.

Later we will discuss another evidentiary issue written into law by the Florida legislature-the presumption of undue influence.


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