Blogs from May, 2015


Florida law is well established that when a will is challenged on the grounds of undue influence, the influence must amount to over persuasion, duress, force, coercion, or artful or fraudulent contrivances to such an extent that there is a destruction of free agency and willpower of the testator.   As probate litigators, we frequently encounter situations where a court is presented with circumstances suggesting that an elderly person has unfortunately been taken advantage of by their own spouse.  Most often the wrongdoer is a person who marries the victim just prior to death and changes the victim’s estate plan to disinherit family members who were previously the intended beneficiaries of the victim’s long-standing estate plan.

One such case was recently presented in Palm Beach County, Florida where the court upheld the challenge by a testator’s daughter who sought to invalidate the will that was executed a year after the marriage and had the effect of disinheriting the victim’s daughter and giving the estate to the new bride.  Blinn v. Carlmann –So.3d—(2015); 2015 WL 1223665.

Importantly, the Court observed that undue influence is not usually exercised openly in the presence of others, so that it may be directly proved, hence it may be proved by indirect evidence of facts and circumstances from which it may be inferred.  In Blinn, the court found the following evidence pointing to the conclusion that the will was procured by undue influence:

  • The will was executed one year after the marriage and three years prior to a finding of incapacity.  The court stated that failed mental capacity is a factor that should be considered as supporting the undue influence claim and that the amount of undue influence need not be great where a testator is weak and his intellect clouded.
  • Before and during the marriage, the new spouse preyed on the victim’s paranoia and mental infirmity to alienate the victim from his two children and their families.  For example, when the victim’s son would telephone, the new bride would immediately hang up if she answered the phone.
  • Prior to the marriage, the victim’s daughter took care of her father’s (the victim) finances and helped him pay his bills.  After the marriage, the new spouse paid all the bills and wrote all the checks.
  • One year after the marriage, the new spouse wrote a letter in her own handwriting to the victim’s life insurance company requesting that the beneficiary on his policy be changed from the victim’s daughter to the new spouse.    She sent a similar handwritten request to the insurance company after the victim had been hospitalized and diagnosed with severe dementia.
  • While the victim was hospitalized, the new spouse asked a lawyer to send her estate planning documents and a power of attorney for the victim to sign.  The law firm complied.  The court observed that if the new spouse were so bold as to openly display such influence over the victim, then it can be reasonably inferred that similar or greater influence was occurring in the dark during their marriage.

This is the type of indirect and circumstantial evidence that is routinely used by probate litigators to prove that undue influence has occurred in the procurement of a will or a trust by unscrupulous persons.  Unfortunately for many Florida seniors, the undue influencers are often those persons with whom they share a trusting and confidential relationship.


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