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Florida Undue Influence Law

The most common challenge to the validity of a will or trust is undue influence.  Florida law provides that if all or any portion of a will or trust is proven to be the product of undue influence, then the whole will or trust (or that portion procured by undue influence) is invalid.  See, Fla. Stat. 732.5165 (wills) and Fla. Stat. 736.0406 (trusts).  Undue influence is also grounds for invalidation of pay-on-death beneficiary designations and inter vivos (lifetime) transfers and gifts.

What is "undue influence?"

Undue influence is a cause of action used to challenge the validity of a testamentary document (for example, a Last Will & Testament or a Trust), deeds and other inter vivos - or during life - transfers.  As the Second District Court of Appeal in Florida noted, 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 destruction of the free agency and will power of the one making the will. Heasley v. Evans, 104 So. 2d 854, 857 (Fla. 2d DCA 1958).

Undue influence is a species of fraud and is proven through circumstantial evidence.  Peacock v. DuBois, 90 Fla. 162, 164-165 (1925), 105 So. 321 (Fla. 1925) (“undue influence has been classified as either a species of fraud or a kind of duress, and in either instance is treated as fraud in general.”).  “Deceptive conduct usually must be proved by circumstantial evidence and such circumstances may, by their number and joint consideration, be sufficient to constitute proof of fraud.”  Cohen v. Kravit Estate Buyers, Inc., 843 So.2d 989 (Fla. 4th DCA 2003).  As the Florida Supreme Court noted in Gardiner v. Goertner, 149 So. 186 (Fla. 1932), “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 is may be inferred.  No one of such facts or circumstances, when considered alone, may be of much weight but when combined with other facts may be sufficient to establish the issue.”  Id at 385-386. 

While competency is not the issue in a case of undue influence, a testator who suffers from declining health or who has diminished capacity may be more susceptible to undue influence.  Each case involving allegations of undue influence must be determined on its own facts. Estate of MacPhee, 187 So. 2d 679 (Fla. 2DCA 1966).  Extensive discovery of estate planning records, medical records, and financial records is usually required to prove an undue influence case.  As noted above, it is not unusual that the only evidence of undue influence is circumstantial because the conduct that amounts to undue influence is not normally seen by others.

How is undue influence proven?

Florida undue influence cases are proven through circumstantial evidence and involve a shifting burden of proof.   Fla. Stat. §733.107(2) provides “[t]he presumption of undue influence implements public policy against abuse of fiduciary or confidential relationships and is therefore a presumption shifting the burden of proof under ss. 90.301-90.304."  For the party challenging a will or trust on the grounds of undue influence, the question becomes what evidence is required to shift the burden of proof to the proponent of the will or trust, who is often the alleged undue influencer?  The seminal Florida Supreme Court case is In re: Estate of Carpenter, 253 So.2d 697 (Fla. 1971).   The Carpenter court held that a presumption of undue influence affecting the burden of proof arises when:

  • Someone who has a substantial benefit under the will,
  • possessed a confidential relationship with the decedent, and
  • was active in the procurement of the will. 

The Carpenter court reasoned that it would not be difficult to prove the first and second elements of the presumption of undue influence, but that the “active procurement” element would be more difficult.  Accordingly, it provided guidance by articulating seven nonexclusive factors to assist a trier of fact to determine whether there was active procurement.  Those seven “Carpenter factors” are: 

1) presence of the beneficiary at execution of will;

2) presence of the beneficiary at times when testator expressed a desire to make the will;

3) recommendation by the beneficiary of an attorney to draw the will;

4) knowledge of the contents of the will by the beneficiary prior to execution;

5) giving 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) safekeeping of the will by the beneficiary subsequent to execution. 

The Carpenter court stated that the aforementioned seven factors were neither mandatory nor exclusive.  “We do not determine that contestants should be required to prove all the listed criteria to show active procurement…[as] it will be the rare case in which all the criteria will be present…[w]e have troubled to set them out primarily in the hope that they will aid trial judges in looking for those warning signals pointing to active procurement of a will by a beneficiary.”  Id.  (emphasis added) The Cripe court extended the Carpenter factors to inter vivos transfers.  Additionally, Florida courts recognize at least three other indicators of active procurement:

8) isolating the testator and disparaging family members (Newman v. Smith, 82 So.2d 236 (Fla. 1919); In re Auerbacher’s Estate, 41 So.2d 659 (Fla. 1949); In re: Ates’ Estate, 60 So.2d 275 (Fla. 1952));

9) inequality of mental acuity between the decedent and the beneficiary  (Peacock v. DuBois, 105 So.2d 321 (Fla. 1925); In re: Estate of Reid, 138 So.2d 342 (Fla. 3d DCA 1962); and

10) reasonableness of the trust provision  (Newman v. Smith, 82 So. 236 (Fla. 1919)).

See, David P. Hathaway, Make it an Even 10: Courts Rely on More than the Seven Carpenter Factors to Analyze a Claim for Undue Influence of a Will or Trust, The Florida Bar Journal, Volume 83, No. 6 (June, 2009).

In Florida, the presumption of undue influence shifts the burden of proof.  Florida Statute §733.107(2) provides “[t]he presumption of undue influence implements public policy against abuse of fiduciary or confidential relationships and is therefore a presumption shifting the burden of proof under ss. 90.301-90.304.” (While the undue influence presumption statute is codified in the Probate Code relative to will contests, Florida courts have broadly applied the presumption of undue influence to lawsuits involving inter vivos transfers.  See, Cripe v. Atl. First Nat'l Bank, 422 So. 2d 820 (Fla. 1982)).  Accordingly, the presumption of undue influence shifts the burden of proof and is not merely a vanishing or “bursting bubble” presumption.  Ehrhardt, Florida Evidence §§302.1, 302.2 (Thomson/West 2016 ed.)  Once the presumption of undue influence is raised, the burden of proof is reversed, requiring the proponent of the challenged instrument to prove, by the greater weight of the evidence, that no undue influence occurred.  Diaz v. Ashworth, 963 So.2d 731, 734 (Fla. 3d DCA 2007); Hack v. James, 878 So.2d 440 (Fla. 5th DCA 2004).  

In an undue influence case, 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, which simply means the trier of fact finds it is more likely than not there was undue influence.  It is important to note that the Carpenter factors are not the elements of the cause of action of undue influence.  They relate solely to the shifting burden of proof.  Even if a will contestant cannot prove the Carpenter factors, he or she may still be able to prove undue influence if they have sufficient evidence to  prove that the alleged undue influencer destroyed the free will and controlled the mind of the testator to such a degree that the resulting will or trust was the product of the mind of the undue influencer and not that of the testator.  However, if the the contestant presents sufficient evidence to give rise to the presumption of undue influence, then the burden of proof shifts to the proponent of the document (who is usually also the alleged undue influencer) to prove by a preponderance of the evidence that the will (or trust) was not the result of undue influence. Diaz v. Ashworth, 963 So. 2d 731 (Fla. 3d DCA 2007).

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If you have a Florida Undue Influence matter you would like to discuss with an attorney, whether you would be prosecuting or defending, please call the probate lawyers at Adrian Philip Thomas, P.A. to schedule your free initial consultation.

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