Undue Influence Laws

Florida Laws on Undue Influence

Aggressive Legal Representation in Your Pursuit for Justice

What Is Considered Undue Influence?

Undue influence is a cause of action used to challenge the validity of a testamentary document, such as a will, trust, deed, and other transfers.

This can look mean over-persuasion, duress, force or coercion to the degree that the other person's free agency and willpower is diminished. As a result, there is an unequal relationship and the victim usually succumbs to the other person's decisions.

The most common challenge to the validity of a will or trust is undue influence. According to Florida law, 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. Undue influence is also grounds for invalidation of pay-on-death beneficiary designations and lifetime transfers and gifts.

How Is Undue Influence Proved?

Undue influence is a type of fraud that is proven through circumstantial evidence and typically involve a shifting burden of proof. Since undue influence is not usually exercised openly in the presence of others, it can be proved by indirect evidence of facts and circumstances from which it may be inferred. No one of such facts or circumstances, when considered alone, may be of much weight, but when combined with other facts, they might be sufficient to establish the issue.

What Type of Evidence Is Required to Prove Undue Influence?

For the party challenging a trust or will on the grounds of undue influence, the challenge is determining what type of evidence is required to shift the burden of proof to the proponent of the will or trust, who is often the alleged undue influencer.

Extensive discovery of estate planning records, medical records, and financial records is usually required to prove an undue influence case. According to F.S. §733.107(2), “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.”

What Does the Court Look at If There is a Presumption of Undue Influence?

The seminal Florida Supreme Court case of In re: Estate of Carpenter 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 help determine whether there was active procurement:

  • The presence of the beneficiary at the execution of the will.
  • The presence of the beneficiary at times when the testator expressed a desire to make the will.
  • A recommendation by the beneficiary for an attorney to draw the will.
  • Knowledge of the contents of the will by the beneficiary prior to execution.
  • Giving instructions on preparation of the will by the beneficiary to the attorney drawing the will.
  • Securing of witnesses to the will by the beneficiary.
  • Safekeeping of the will by the beneficiary after its execution.

The Carpenter court stated that the aforementioned seven factors were neither mandatory nor exclusive. Additionally, Florida courts recognize at least three other indicators of active procurement:

When Does the Burden of Proof Shift in an Undue Influence Case?

In Florida, the presumption of undue influence can shift the burden of proof from the person initiating the claim to the person accused of undue influence under certain circumstances. Once the presumption of undue influence is raised, the burden of proof can be reversed, requiring the accused beneficiary be the one to prove, by the greater weight of the evidence, that no undue influence occurred.

The burden of proof shifts to the accused beneficiary if the person challenging the will can prove undue influence by showing:

  • The accused is set to receive a substantial benefit through the Will
  • The accused and the testator enjoyed a confidential relationship
  • The accused was active in procuring the will

The initial burden of proof does rest with the individual challenging the documents once the Will or trust has been executed. However, if the challenging individual 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.

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, they still might 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.

Our Talented & Experienced Litigators Proudly Take on Undue Influence Cases

Adrian Philip Thomas, P.A. is here to assist with your undue influence case. We possess a breadth of experience unique to our boutique law firm that makes us well-suited to guide you through this particular area of law. Our seasoned attorneys have extensive backgrounds in estate planning, uncontested probate and guardianship, law enforcement, guardianship advocacy, and all forms of litigation all of which play an important role in pursuing undue influence cases.

Call (800) 776-3103 or contact us online to request a free case consultation with our litigators in Florida.

The Stories That Matter

Read Our Client Thank You Notes
  • My gratitude to you for all you have done.

    Michele, thank you for helping me through this process and making me the owner of the home. My gratitude to you for all you have done. 

    - S.R.
  • I want to say thanks your service and the courtesy extended.

    Adrian and Liam, on behalf of the family of M.O., I want to say thanks your service and the courtesy extended. 

    - V.C.
  • Thank you to your entire firm for the services rendered in this matter

    Adrian and Jeff, Thank you to your entire firm for the services rendered in this matter and finally to its conclusion. I know it was a joint effort and everyone is appreciated. 

    - B.S
  • Again, thank you guys for your "awesome work."

    Adrian, Again, thank you guys for your "awesome work." Well appreciated. C.M.

    - C.M.
  • Thank you very much again for your insight and the motion

    “Adrian, Thank you very much again for your insight and the motion, and for always invigorating and inspiring me in our conversations.”

    - S.S.
  • Martindale AV-Rated
  • The American Lawyer
  • Top Rated Lawyers
  • Legal Elite 2012
  • Daily Business Review
  • Top 100 Lawyers
  • Avvo Rating 10.0 Top Attorney Litigation
  • Forbes
  • Legal Readers

Let Us Fight for You

Contact Us Today for Your Complimentary Consultation
  • Please enter your first name.
  • Please enter your last name.
  • Please enter your phone number.
    This isn't a valid phone number.
  • Please enter your email address.
    This isn't a valid email address.
  • Please make a selection.
  • Please enter a message.