Blogs from February, 2015


Proving that a will was procured by the undue influence of another can sometimes be difficult.  Often, this type of conduct occurs in secret, away from the watchful eyes of family and loved ones, and involves the victimization of an elderly, ill person at the hands of someone he or she trusts.  Florida law recognizes this reality and the legislature has provided a means by which plaintiffs may not only prove undue influence but also shift the burden of proof so that that defendant must offer his own evidence.

Fla. Stat. §733.107 provides that, when contesting the validity of a will, the burden of proof shifts.  First, the proponent of the will, i.e. the defendant, must establish that the will was properly executed.  If the defendant initially proves that the Will was signed and properly witnessed, then the burden to prove undue influence shifts to the plaintiff.  Fla. Stat. § 733.107 recognizes that a presumption of undue influence should apply against those in positions of trust, such as a fiduciary, actively procure a will for their own benefit.

When Florida courts examine whether a defendant “actively procured” a will, they look at several factors including:

  • Was the defendant present at the signing of the will?
  • Was the defendant present when the Decedent discussed a desire to make a will?
  • Did the defendant recommend an attorney to draft the will?
  • Did the defendant know what the will would say before it was signed?
  • Did the defendant instruct the drafting attorney regarding the preparation of the will?
  • Did the defendant secure the witnesses to the will?
  • Did the defendant retain the original signed will for safekeeping?

If the Plaintiff can produce sufficient evidence of undue influence by demonstrating that the defendant has a substantial benefit under the will, possessed a confidential relationship with the decedent, and actively procured the will, the burden shifts again.  Now the defendant must affirmatively disprove the existence of undue influence.

The presumption of undue influence and the shifts in the burden of proof found in Fla. Stat. § 733.107 and Florida jurisprudence illustrate the public policy against abuse of fiduciary or confidential relationships and the unfortunate reality that cases of undue influence are common.  With § 733.107, the legislature has provided a useful tool for plaintiffs who seek to contest the validity of a will procured by undue influence.


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