Blogs from September, 2008


Do I have a Case?  What Evidence Points to the Conclusion of Undue Influence?

(Part One)

If I had a nickel for each time a potential client or a referring probate administration attorney asked me this question, I’d retire today. The answer, of course, depends upon a careful examination of each individual case, and frequently the successful resolution of a probate dispute hinges upon the discovery of evidence (often medical and financial records) produced after a lawsuit has commenced.

Generally, 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 Case, 253 So. 2d 697 (Fla. 1971).

The criteria to consider when determining whether the beneficiary of a will actively procure the will include (1) the beneficiary’s presence at the execution of the will, (2) the beneficiary’s presence when the testator expresses a desire to make a will, (3) the beneficiary’s recommendation of an attorney to draw the will, (4) the beneficiary’s knowledge of the contents of the will prior to execution, (5) the beneficiary’s instructions to the attorney on the preparation of the will, (6) whether the beneficiary secured the witnesses to the will, and (7) whether the beneficiary has possession of the will subsequent to execution. In re Estate of Flohl, 764 So.2d 802 (Fla. 2d DCA 2000).

One of the first things I examine in a potential case is the susceptibility of a person to undue influence. For example, age and physical limitations or disability are always relevant to the issue of whether a person was subject to being unduly influenced. Often old age is coupled with the person’s inability to handle their own business affairs (i.e. having someone else write checks for them). I also look into the physical and mental status of the subject person at or around the time of the execution of the will or trust at issue. All too often, it is discovered that a caretaker will withhold comfort measures from a suffering person in order to unduly influence the person into making or destroying a will or trust. Other times I find that a person who cannot read or write is presented with a lengthy legal document that could have only been explained by the person who presented it to them (and who usually benefits from its content!).

The next important element I examine is whether the person(s) who allegedly exerted undue influence was disposed to influence the susceptible person. This is usually never proven by direct evidence since there is rarely a witness who can testify that they observed the conduct perpetrated upon the susceptible person. Thus, in my practice, we search for certain kinds of circumstantial evidence pointing to the conclusion that the accused person(s) possessed the disposition to unduly influence the victim. I have had success in cases where I can demonstrate that the undue influencer(s) had direct, consistent, and undisturbed access to the susceptible person. This access, coupled with evidence that the undue influencer(s) took efforts to exclude other persons, especially other family members, from access to the susceptible person, is strong circumstantial evidence of an important element of undue influence and tends to prove the opportunity of the accused person(s) to exert undue influence.

The relationship between the undue influencer and the susceptible person is also a practical method of proving, by circumstantial evidence, the opportunity or disposition to commit undue influence. For example, a confidential relationship between the two persons, coupled with a will or trust executed during the time of the relationship, will usually be sufficient to raise a presumption of undue influence. Porter v. Estate of Spates, 693 So.2d 88 (Fla. 1st DCA 1997). A confidential relationship is defined in Florida as a relationship “where there is a relation of trust and confidence between persons; that is, where confidence is reposed by one party and trust accepted by the other. It encompasses informal relationships based upon trust or confidence that one person places in another.” Estate of Brock. 692 So.2d 907 (Fla. 1st DCA 1996.). This includes professional relationships (i.e., attorney-client; accountant-client) and fiduciary relationships (i.e.,guardian-ward; trustee-beneficiary). The issue of whether, and under what circumstances, spouses may share a confidential relationship, in the legal sense for a will contest, is a more complicated issue that will be addressed in a separate post.

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?”


Most Recent Posts from September, 2008