It is an unfortunate reality that some people have no qualms using undue influence for the purpose of obtaining “gifts” from an individual who is elderly, ill or weak. Our Florida probate attorneys have seen these cases arise most frequently in cases involving nursing home residents, elderly parents or ailing grandparents. Those who allege “undue influence” (which is a specific charge in probate litigation) are usually surviving loved ones doing so with the intention of challenging the validity of a lost loved one’s will, trust or inter vivos transfer (transfer of property made during one’s lifetime).
Proving undue influence is not a simple matter or low bar. One has to prove that the victim’s mind was “so controlled or affected by persuasion or pressure, artful or fraudulent contrivances or by the insidious influences of persons in close confidential relations” that he or she isn’t knowingly or voluntarily acting of their own accord, but instead carrying out the will of someone else. This was outlined in the precedential 1925 Florida Supreme Court case of Peacock v. Dubois.
In most cases, it is the plaintiff asserting undue influence who typically has the burden of poof. Prior to 1971, the burden of proof in these cases was reached with enough evidence to raise the undue influence presumption, at which point the proof burden shifted to the defendant, who then had to prove it didn’t occur. Then there was the key Florida Supreme Court case of Carpenter v. Carpenter, justices ruled that even the establishment of an undue influence presumption didn’t shift the proof burden to the defendant, at least as it pertained to will contests. About a decade later, the court decided the same rule in cases alleging inter vivos transfers.
In 2002, legislators approved F.S. 733.107, which further clarifies the burden of proof in contesting wills and undue influence presumption.
Despite this guidance, our probate lawyers in Fort Lauderdale recognize that case of undue influence are rarely cut-and-dried. If you believe that your loved one’s will has some peculiarities or deviates from what you were told or led to believe about it, it’s usually worth meeting with a probate litigation attorney to determine whether contesting the will is worth your while.
The Carpenter case outlined seven signs (not all-encompassing, depending on the case) that tended to indicate undue influence. Those were to assess whether the person accused of undue influence was:
- Present when the decedent made their will or trust;
- Present at times when decedent talked about creating their will or trust;
- The one who recommended a lawyer to handle decedent’s estate work;
- The one who knew the contents of the will or trust before it was completed;
- The one who instructed the attorney on how to complete the trust or will;
- The one who found witnesses to the will;
- In physical possession of the will after it was executed.
These can make a strong case for undue influence when contesting a Florida will, but other factors may prove just as if not more important. For example, there have been later will contest cases in Florida that didn’t focus much on the Carpenter factors at all, but still managed to prove undue influence on things like isolation of the decedent prior to death.
Call Fort Lauderdale Injury Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.
In Re Estate of Carpenter, 1971, Florida Supreme Court
More Blog Entries:
Family Conflicts Are Top Threat to Your Inheritance, Estate Planning Key, May 14, 2018, Fort Lauderdale Probate Attorney Blog