Blogs from October, 2008


Do I have a Case? (Part Two)

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? Was there a confidential relationship between the undue influencer and the victim?

Another good preliminary “red flag” when making an initial assessment of a potential case is whether the resulting will or trust document has an “unnatural” result. What I mean by “unnatural” is where a will or trust, made at the end of a person’s life, benefits a person who is not related to the decedent, or would not have a natural claim to the relative’s estate. Another “red flag” is where a will or trust benefits one beneficiary out of proportion to other beneficiaries who stand on equal footing as relatives.

Other indicators that something may be wrong with the execution of a will or trust, and therefore fertile ground for an undue influence challenge, is where the making of a will or trust is kept secret from other family members or persons who would have a natural claim to the decedent’s estate or inheritance. Similarly, if a will or trust is hastily made or made using an attorney different from one who has an established relationship with the decedent, there may be cause for concern warranting further inquiry.

An example of the type of case I’m discussing was the subject of the Court’s opinion Paananen v. Kruse, 581 So.2d 186 (Fla. 2d DCA, 1991) where a challenge was brought seeking to invalidate and revoke the probate of a deceased’s will and revocable trust for undue influence. In this case, the deceased initially executed a will in favor of her surviving great-nieces but was later influenced to execute a will in favor of the claimant who was not a family member, but who assisted the deceased with her personal and business affairs when her health began to decline. In this case, the Court gave weight to the findings that: (1) the claimant had her own attorney, rather than the deceased’s attorney, draft the will and trust; (2) that she carried out all communications concerning the will and trust with the attorney after the initial conference; (3) and that she attempted to prohibit contact between the deceased and her great-nieces after becoming trustee; and(4) instructed the retirement home to evict the nieces if they came to visit, and the nieces were forced to leave when they did come, together with other evidence was sufficient to support the trial judge’s finding of undue influence.

In sum, the foregoing points highlight some of the things I look for in my initial assessment of the case, in order to answer the inevitable inquiry: “Do you think I have a good case?”


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