In Re: Estate of Carpenter – the presumption of undue influence in Florida and the Florida Probate Code.
I have written at great length of the various factors I assess when determining whether to accept a case for the prosecution. I now turn my attention to the Florida decisional case law from the Florida Supreme Court in the seminal case of In re Estate of Carpenter, 253 So.2d 697 (Fla. 1971) its practical application, and the Florida legislature’s response through the enactment of section 733.107 of the Florida Probate Code which today supersedes Carpenter.
When the validity of a will or trust is challenged based upon the theory of undue influence, the challenger must prove the instrument at issue (will or trust document) resulted from the exercise of undue influence on the mind of the person executing the will or trust instrument. The Carpenter decision from the Florida Supreme Court sets forth the basic principle of law that the challenger’s initial burden can be met by proof of sufficient facts to raise a presumption of undue influence. Simply stated, a presumption of undue influence arises upon a showing that a party who (1) occupied a confidential relationship with the testator, (2) was a substantial beneficiary under the will, and (3) was active in procuring the instrument.
Carpenter arrived at the Florida Supreme Court by virtue of some technical appellate process wherein the Court was asked to settle a disagreement between the different appellate district courts in Florida. The facts of the case are fairly typical for the cases that my practice deals with: Four days before her death, Mrs. Coketine Bray Carpenter left her entire estate outright to her daughter, Mary Redman Carpenter. She left nothing to her three surviving sons, Ben, Sam, and Bill. Ben and Bill filed a lawsuit seeking to have the will declared invalid on the ground that it was procured by undue influence.
The probate court judge heard evidence and found that Mrs. Carpenter’s will was invalid since it was procured by undue influence. Specifically, the probate court judge made the following conclusions:
• That Mrs. Carpenter’s will was executed in conformity with the formalities for executing a will (signed by Mrs. Carpenter at the end and in the presence of two attesting witnesses who were present at the same time Mrs. Carpenter signed the said will).
• “At the time of her death in 1966, Mrs. Carpenter was 52 years of age. Her husband had died in 1953 so that when her four children thereafter became grown and moved away, the decedent was left to live alone in the family home in Winter Garden, Florida. During the several years that she did live alone, she handled all of her own business and household affairs. In the summer of 1966, Mrs. Carpenter developed cirrhosis of the liver to such an extent that she became quite ill and required hospitalization by her physician on August 28.” Id. at 699.
• Mrs. Carpenter (the decedent) “was a widow and the mother of a grown daughter, Mary, and three grown sons, Ben, Sam, and Bill; that of all her said children the decedent was most fond of Ben; that Ben substantially assisted the decedent, both financially and otherwise, more than her other children; that on many occasions the decedent expressed a considered intention to leave her estate equally to her four children.” Id. at 698.
• “Mary, oldest of the four children, was employed as a school teacher in Daytona Beach. In the summer of 1966, she attended a ten-week school session at the University of Georgia, at the completion of which she visited her mother on August 20, 1966. Mary immediately recognized that her mother was quite ill, and when she again visited her mother one week later and saw that there was no improvement, Mary arranged for her mother to be admitted to a hospital in Daytona Beach on August 28. Mrs. Carpenter had no telephone in her room, nor was one readily accessible to her. On August 30, Mary telephoned her own attorney in Orlando, Russell Troutman, Esquire, advising him that her mother wished to have a will prepared in which Mary was to be named as sole beneficiary and executrix. The following day Mary again telephoned the attorney to impress upon him the urgency of the matter.” Id. at 700.
• “Following the second telephone call Mr. Troutman promptly prepared a will in accordance with these instructions and drove from Orlando to Daytona Beach with the document. When he arrived at the hospital, the testatrix recognized him, and out of the presence of Mary, Mr. Troutman questioned the testatrix in detail concerning her wishes for the disposition of her property, particularly to satisfy himself that she was aware that under the testamentary scheme as relayed to him, Mrs. Carpenter’s three sons were being excluded from her will. After this preliminary questioning of the testatrix, Mr. Troutman then arranged for two other persons to be present (one of whom was a medical doctor) during the time that Mr. Troutman read the will to the testatrix and again questioned her to satisfy himself and the witnesses that Mrs. Carpenter was aware of the contents of the document and that it was in accord with her desires. The will was then properly executed and retained by Mr. Troutman, none of the children other than Mary being aware of the will’s existence until at or just shortly prior to Mrs. Carpenter’s death four days later.” Id. at 700.
• The probate court found “that there was no evidence that subsequent to such expressions of intent any event transpired which under normal circumstances would have influenced the decedent to depart from her said intention; that there was no evidence that the decedent had ever had a will other than the said purported will; that in the absence of a will the decedent’s estate would, by the law of intestacy, have been divided equally among her four children.” Id. at 698
• A confidential relationship existed between Mary and Mrs. Carpenter (the decedent.).
• Mary was active in procuring the execution of the will.
(a) Mary made all the arrangements for the preparation and execution of the will.
(b) Mary kept the execution of the will a secret from the sons of the decedent, Ben, and Bill.
(c) Mrs. Carpenter’s (the decedent’s) doctor was not consulted regarding the decedents ability to execute a will and was not informed of the said purported will until after the death of the decedent;
• “At the time the said purported will was executed on September 1, 1966, for quite some time prior thereto and until her death thereafter, the decedent was very sick physically, depressed, and mentally impaired; that for quite some time prior to the execution of the said purported will the decedent drank alcohol daily, frequently to excess, and often as much as a one-fifth gallon of whiskey per day; that the ultimate cause of the decedent’s death was the breakdown of her body due to excessive consumption of alcohol.” Id. at 699.
• Mrs. Carpenter’s condition “was so poor at the time the said purported will was executed that three days prior thereto her physician had concluded she was a terminal case and that four days after the said execution she expired.” Id. at 699.
• Just one day prior to the signing of the will, Mrs. Carpenter “informed an examining physician that she had been depressed for a long period of time.” Id. at 699.
• Mrs. Carpenter was given mind-altering drugs during the relevant time period, which “impair the mind of a normal person and impair the mind of a sick person even more.” Id. at 699.
• At the time of the will signing, Mrs. Carpenter “stated that she was leaving her sons out of her estate because they did not love her” although there was no evidence that the decedent’s sons did not love her nor was there any evidence which would lead an unimpaired mind to believe that they did not love her.
Based upon the foregoing the probate court held that “a presumption has been raised that the said execution of the purported will was procured through undue influence.” Id. at 699. Further, the presumption was never rebutted by Mary, and therefore, the will was declared invalid.
When the case arrived in the chambers of the Florida Supreme Court, it was concerned with the issue of the presumption of undue influence and whether the presumption was rebutted and whether the evidence before the county judge, aside from the presumption, was insufficient as a matter of law, to permit him to conclude these issues in the order.
The Court provided some guidance for all of us when it defined the legal terms of active procurement and confidential relationship.
• The Court defines a confidential relationship as one that exists wherever one man or woman trusts in and relies upon another.
• Active procurement is an issue that can be determined from examining the following factors identified by the Florida Supreme Court:
(a) presence of the beneficiary at the execution of the will;
(b) presence of the beneficiary on those occasions when the testator expressed a desire to make a will;
(c) recommendation by the beneficiary of an attorney to draw the will;
(d) knowledge of the contents of the will by the beneficiary prior to execution;
(e) giving instructions on preparation of the will by the beneficiary to the attorney drawing the will;
(f) securing witnesses to the will by the beneficiary; and
(g) safekeeping the will by the beneficiary subsequent to execution.
Separation of Powers
Here is where the Carpenter decision and the legislative reaction can teach us all a good civics lesson. The Carpenter Court held that once evidence of a presumption of undue influence has been presented, it does not shift the burden of proof to the proponent of the will to prove the will was not the product of undue influence. Rather, it merely shifts to the proponent the burden of coming forward with a reasonable explanation for the beneficiary’s active role in the decedent’s affairs, and in the preparation of the will.
Tallahassee Strikes Back
Lawyers around the state were compelled to lobby our legislators in Tallahassee because we felt that requiring someone who has been accused of undue influence through active procurement of a will to merely provide a reasonable explanation wasn’t sufficient. Subsequent to Carpenter, the legislature enacted an amendment to §733.107 of the Florida Probate Code to prohibit the shifting of the burden of proof in the presumption of undue influence cases. Under current law, the probate code supersedes the Carpenter decision, and now Florida law holds that in those cases where the proponent of a will satisfies, prima facie, the will is facially proper, and the contestant thereafter satisfies, prima facie, a presumption of undue influence in the making of the will, the proponent of the will have the burden of proving the will was not the product of undue influence. That burden must be met by a preponderance of the evidence as determined by the trier of fact.
Also, subsequent to Carpenter, other appellate courts in Florida held that will contestants are not required to show the existence of all the criteria to establish active procurement. Therefore, where there is inequality of mental strength, active procurement can be shown by evidence of a request or suggestion by the dominant party. See, In re Estate of Reid, 138 So.2d 342, (Fla. 3d DCA 1962) (higher degree of proof required to overcome inference of undue influence where the testator is shown to have impaired mental powers or clouded intellect, than where the testator is in good health).