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Florida Probate and Trust-Related Claims for Undue Influence

The most common challenge to the validity of a will, trust, or other testamentary document 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.

“Undue influence” may be defined as a type of case that is filed in the probate court which challenges the legitimacy or lawfulness of any testamentary document such as a trust or last will and testament, deeds, or any other transfers made during the life of a decedent. Florida courts have held that the behavior of an individual charged with “undue influence,” as necessary to nullify a will, has to equate to force, duress, coercion, over-persuasion, or fraudulent or artful contrivances to such a degree that there is a complete break down of the free agency and will power of the will-maker.

Under Florida Statute 733.103, in order for a will to be valid, it must be unrevoked at the time of the testator’s death, executed by a “competent testator” who was free of fraud, duress and undue influence.

Undue influence can be challenging to prove.  The Florida Supreme Court established several factors to help determine whether there was evidence of undue influence.  In Re Estate of Carpenter, 253 So. 2d 697 (Fla. 1971) the court stated that “if a substantial beneficiary under a will occupies a confidential relationship with the testator and is active in procuring the contested will, the presumption of undue influence arises.”

Showing Evidence of a “Confidential Relationship” and “Active Procurement”

In Carpenter, the court focused on the establishment of a “confidential relationship” and “active procurement.”  A confidential relationship can exist “wherever one man trusts in and relies upon another.” The court also outlines 7 criteria in determining whether there was “active procurement”:

(a)    Presence of the beneficiary at the execution of the will

(b)   Presence of the beneficiary on those occasions when the testator expressed a desire to make a will

(c)    Recommendation by the beneficiary of an attorney to draw the will

(d)   Knowledge of the contents of the will by the beneficiary prior to execution

(e)   Giving of instructions on preparation of the will by the beneficiary to the attorney drawing the will

(f)     Securing of witnesses to the will by the beneficiary; and

(g)    Safekeeping of the will by the beneficiary subsequent to execution

If any number of these criteria are met, the court found that the presumption then shifts to the proponent of the will to show that the testator was free from undue influence at the time the will was executed.   This established what is today known as the “Carpenter” presumption which effectively shifts the burden of proof in undue influence cases to the proponent of the will once the presumption of undue influence is applied.

Undue Influence and the Burden of Proof

This and other vital cases helped to establish the burden of proof in will contests codified in 2002.  UnderF.S. 733.107 (2):

In any transaction or event to which the presumption of undue influence applies, the presumption 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.

Since the Carpenter decision, a number of other cases have expanded the criteria which a court may use in determining whether there was undue influence.

If you believe that a will, trust, deed, account-related document, or other testamentary document or a loved one was executed because of fraud, duress, or undue influence, contact us immediately to evaluate your legal rights. Levin Law handles cases on a variety of financial arrangements, including contingency, billable, flat fee, as well as others.  Contact us immediately for a free, no-obligation case consultation. Contact our offices today at (305) 402-9050 or

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