New tricks for an old dog?
As the seminal case of In re Estate of Carpenter, 253 So. 2d 697 (Fla. 1971), turns 40 years old, a review of the holding is warranted to see if whether it is withstanding the test of time. To prove undue influence in Florida, a will or trust contestant must show that the decedent was unduly influenced by 1) a substantial beneficiary under the contested document 2) and that beneficiary had a confidential relationship with the decedent and 3) actively procured the will or trust. Often in undue influence actions, the first and second items are stipulated to, as it is appropriate that a substantial beneficiary may have a confidential relationship with a decedent.
While not exhaustive, the Florida Supreme Court provided seven criteria in In re Estate of Carpenter, 253 So. 2d 697 (Fla. 1971) in determining undue influence:
1) presence of the beneficiary at the execution of the will/trust;
2) presence of that beneficiary on occasions when the testator expressed a desire to make the will/trust;
3) recommendation by the beneficiary of an attorney to draw the will/trust;
4) knowledge by the beneficiary of the contents of the will/trust prior to its execution;
5) giving of instructions on preparation of the will by the beneficiary to the attorney drawing the will;
6) securing of witnesses to the will by the beneficiary; and
7) physical possession of the will by the beneficiary after its execution.
Although, active procurement is a necessary element in proving undue influence one needs to look beyond the Carpenter factors because Carpenter was decided 40 years ago and over the last 40 years people have come up with creative and subtle ways of perfecting the undue influence scheme.
For example, if you just stuck to Carpenter in evaluating a potential undue influence case in Florida, if the alleged wrongdoer was not present for the execution of the will/trust nor took possession after its execution, an exclusive reliance upon the Carpenter factors may lead one to the incorrect conclusion that undue influence is not provable. What if a sibling told lies to their surviving parents about his sister’s behavior, over the telephone, then visited for several days –is that some evidence of undue influence? If documents were then amended once that sibling returned home, but prior to the death of the parents, would it be possible to use that conduct to help prove undue influence?
If a wrongdoer isolates someone that can be an important factor regarding the issue of undue influence. Although Carpenter does not address isolation and undue influence, newer cases do. In the day's Carpenter was decided, isolating someone required physical presence. In today’s technologically advanced society, isolation may be directed from another state. Ask yourself the following questions: Was the parent given access to the outside world? Who selected the parent’s caregiver? Did the wrongdoer disparage family members? What do the telephone records and email demonstrate?
The point is if you are faced with a scenario in Florida where common sense tells you someone has committed undue influence, the fact that the conduct of the undue influencer doesn’t fit neatly into Carpenter doesn’t mean undue influence doesn’t exist. One needs to investigate additional areas of conduct beyond the Carpenter factors because much of the traditional conduct of taking parents to the lawyer, selecting witnesses, etc., are being replaced by other nefarious conduct that is just as troubling.