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Written by on Oct 14, 2013| Posted in: Probate Litigation

A large number of cases that we litigate regard a will or a trust that our client believes should be invalidated on the basis of undue influence.  In order to prove such a case, it must be shown that that the testator’s mind was so controlled by persuasion, pressure, and outside influences that he or she did not act voluntarily, but was subject to the will of another (the defendant) when the execution of the document took place.  In re Estate of Starr, 125 Fla. 536 (1936). 

Moreover, an important aspect of any case regarding undue influence is the establishment of a presumption of undue influence, which is created by showing that the defendant is a substantial beneficiary under the will or trust, that he/she possessed a confidential relationship (or close relationship) with the testator, and that he/she was active in the procurement of the will or trust.  In re Estate of Carpenter, 253 So.2d 697 (Fla. 1971).  Once the presumption is created, the burden of proof shifts to the defendant to present evidence that the testator was not unduly influenced. 

However, what does it mean to have a “close relationship” as referenced in Carpenter.  Would any child have a “close relationship” with their parent?  The Court in Kester v. Rocco, 117 So.3d 1196 (Fla. 1st DCA 2013) addressed this issue when the personal representative of her mother’s estate was found to have unduly influenced her mother into executing the will that had been admitted to probate. 

However, when the personal representative appealed the lower court’s order, the appellate court determined that there was insufficient evidence to support that the personal representative had a “close relationship” as contemplated in Carpenter that would allow the Court to infer or presume any undue influence.  The Court held that the testimony presented indicated that virtually all of the mother’s children, including the personal representative, assisted her with various tasks and all had close relationships with the mother.  It went on to hold that “[w]here communications and assistance are consistent with a ‘dutiful’ adult child towards an aging parent, there is no presumption of undue influence.

Therefore, the mere fact that a child has a family relationship with the mother (or testator) does not in and of itself satisfy the requirement of a “close relationship” in establishing the presumption of undue influence.  Something else, something more concrete would be required (for example, a power of attorney, etc.). 

Nevertheless, the intricacies and strategies involved in probate and trust litigation as such that a lawyer who specializes in this area of law is recommended if you wish to be properly represented in a will or trust contest.

The attorneys at Adrian Philip Thomas, P.A. limit their practice to estate litigation, including prosecuting and defending undue influence cases.

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