Blogs from March, 2010


Friends, Romans, countrymen, lend me your ears….

How much ear-bending is influenced by undue influence?

As a law firm that focuses on probate, estate, and trust litigation, we encounter all sorts of factual scenarios. In one case where our client was the longtime caregiver/friend of the decedent, a will contest was against the estate planning documents which left the estate substantially to the friend to the exclusion of a son and grandchild. The cause of action contesting the will sounds in undue influence and intentional interference with an expectancy. Throughout the course of the discovery, opposing counsel maintained that the caregiving services provided by our client amounted to overreaching and undue influence. However, as per the Second District Court of Appeal in Florida, the conduct of a person charged with:

Undue influence, as it is required for invalidation of a will, must amount to over-persuasion, duress, force, coercion, or artful or fraudulent contrivances to such a degree that there is the destruction of the free agency and will power of the one making the will. Mere affection, kindness, or attachment of one person for another may not of itself constitute undue influence. Heasley v. Evans, 104 So.l 2d 854, 857 (Fla. 2d DCA 1958).

In the matter of the caregiver/friend, allegations as to the elderly decedent’s allegedly failing health were made. However, aside from her advanced age, no evidence of mental incapacity was found either through witness testimony (nurses and advisors) or medical records. While competency is not the issue in a case of undue influence, a testator who suffers from declining health may be more susceptible to undue influence. The determination of same is decided when the making of the last will and testament was contrary to the testator’s intent. Because undue influence challenges cannot be brought until after the testator’s death, extensive discovery is necessary. Each case involving allegations of undue influence must be determined on its own facts. Estate of MacPhee, 187 So. 2d 679 (Fla. 2DCA 1966). It is not unusual that the only evidence of undue influence is circumstantial, as the conduct that amounts to undue influence (if present) is not normally seen by others. To create a presumption of undue influence there must be a finding of a confidential (or fiduciary) relationship, the active procurement of the will by the beneficiary, and a substantial benefit to that beneficiary. In re Estate of Carpenter, 253 So. 2d 697 (Fla. 1971). It is almost always the “active procurement” that is at issue in an undue influence case. Seven factors to be considered by the Court, which has been written about extensively on this blog, are described in Carpenter.

In Florida, the presumption of undue influence is a rebuttable one. F.S. §733.107. Once proper execution of the will (or trust) has been established, the individual challenging the documents has the burden of presenting evidence to prove the elements of undue influence by a preponderance of the evidence. Unlike a criminal case, where the government must prove its case to the exclusion of any and all reasonable doubt, the burden of proof is the lesser standard of a preponderance. If the case of undue influence has been established by the contestant, the burden of proof then shifts to the proponents of the will, who must come forward with evidence that the will (or trust) was not the result of undue influence. Diaz v. Ashworth, 963 So. 2d 731 (Fla. 3d DCA 2007).

In the case of the longtime caregiver/friend, the disputed issue in the will contest centers upon active procurement. When the decedent, known as strong-willed, retained her longtime estate planning counsel to update her documents, as she would do every few years, finding active procurement by the opposing attorney is an uphill battle.


Most Recent Posts from March, 2010