The American Academy of Matrimonial Lawyers reported that in a national survey, more than 60 percent of top family law attorneys have seen an increase in the total number of prenuptial agreement requests over the last three years, many saying millennial newlyweds were a significant driver of the uptick, though older generations too are securing these agreements, particularly in second or subsequent marriages. The reason for the latter, the AAML noted, was because older couples have more assets to protect.

A recent Florida probate case involving a prenuptial agreement was weighed by Florida’s Fourth District Court of Appeal. The spat was between decedent’s son and his wife over the way the estate was administered.

The court noted a premarital agreement wherein decedent agreed to make a will favoring his wife. However, at some point after their marriage and prior to his death, decedent drafted a new will that excluded the wife in favor of his son. When her husband died and she learned of the new will, the widow filed a petition that sought admission of the will that favored her. The son promptly filed a counterpetition for the Florida probate court to instead admit the version of his father’s will that favored him. In challenging the son’s counterpetition, the widow alleged the will had been altered by way of undue influence.

Undue Influence in Florida Probate Disputes

As our Fort Lauderdale probate litigation attorneys can explain, undue influence involves someone close to the decedent – often a relative or caretaker – who manipulates or pressures the testator (person who wrote the will) into changing it in a way that has some degree of legal significance. That often means altering one’s will in order to favor one individual over another.

In the recent case before the 4th DCA, the lower court determined the wife was able to show substantial evidence raising a rebuttable presumption the son imposed undue influence on his father to disregard the will with language adhering to the prenuptial agreement and favoring the wife and write a new one that favored him. What that meant was the burden of proof shifted to the son to show he did NOT exert undue influence, and the lower court ruled he had not done that. Further, the court ruled the prenuptial agreement prevented decedent from revoking his earlier will in favor of his wife.

The 4th DCA agreed with the outcome, but wrote to clarify that a person always has the right to change their will. If that alteration breaches a contract – such as a prenuptial agreement – that becomes a separate issue. In this case, though, the error was harmless because the will presented by the son had already been invalidated on grounds of undue influence.

Call Fort Lauderdale Probate Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.

Additional Resources:

Kellar v. Estate of John W. Kellar, Oct. 24, 2018, Florida’s 4th District Court of Appeal

More Blog Entries:

Death of Ex Prompts Divorce Agreement on Marital Assets to Forefront in Florida Probate Dispute, Nov. 29, 2018, Fort Lauderdale Will Contest Attorney Blog

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.more

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.

Additional Resources:

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