Undue Influence

Undue influence occurs when someone close to a testator (someone making or executing a will) manipulates or pressures another person in a context that holds legal significance. A type of fraud, undue influence usually arises when a person is drafting a will or entering a contract.

Some examples of individuals who may exert undue influence in these contexts include:

• Caretakers
• Attorneys
• Nurses
• Agents
• Close family members

The Fort Lauderdale probate litigation attorney at The Ansara Law Firm know the big question for court will be interpretation of the testator’s intent. To determine whether there was undue influence in the transfer of testator’s assets, they will look to see whether that transfer was consistent with prior statements of intent – verbal or written. The court will examine whether the testator intended to make the changes that slighted plaintiff.

Even where there is evidence to support the assertion that the testator was susceptible to undue influence, there was opportunity and assets were dispersed to defendant, it could still reflect the testator’s intention or free will.

• The burden of proof in these cases lies with the petitioner (person filing the claim), except when the beneficiary was acting within a confidential relationship or a fiduciary capacity with the testator or settlor (person who settles property on trust law for the benefit of beneficiaries).
• The case that established a shift of the proof burden in cases of a confidential relationship or within a fiduciary capacity, was In re: Estate of Carpenter, decided in 1971. In that case, the court held there are two criteria that must be met to shift the proof burden:

• Proponent of the will had a substantial benefit under the will;
• Existence of a confidential relationship between testator and the beneficiary of the will;
• Active procurement of the contested will by the will’s beneficiary.

This is further outlined in F.S. 733.107.

In the aforementioned Carpenter case, there were seven factors that to help the court determine whether there was “active procurement.” These (nonexclusive) factors are:

• Presence of beneficiary at the execution of the will;
• Presence of beneficiary at times when testator stated a desire to change the will;
• Beneficiary recommended an attorney to draw the will;
• Beneficiary knew the contents of the will before it was executed;
• Beneficiary provided instruction on preparation of the will;
• Beneficiary secured witnesses to the will;
• The beneficiary was entrusted with the will for safekeeping.

It should be noted there are certain relationships that can’t be used to trigger that presumption – primarily, spousal relationships. As noted in the 1981 Fla. 3rd DCA decision in Tarsagian v. Watt, every contested will case benefitting a spouse in Fort Lauderdale or elsewhere in Florida could assert undue influence absent a rule stipulating otherwise. The same was noted in the even earlier 1936 Florida Supreme Court decision in Goertner v. Gardiner, where it was noted the confidential relationship between a husband and wife is not one which may be considered in the law governing contested wills.

That does not mean a claim of undue influence against a spouse is impossible, only that claimants won’t be entitled to the presumption that shifts the proof burden onto defendant.

You should know the courts tend to favor honoring what is in a will, even if the outcome is suspicious or even unfair. This is particularly true when the will favors the spouse. However, there may be exceptions, and it’s important to talk about your legal options with a lawyer.

Most cases will require extensive discovery involving things like:

• Medical records;
• Financial records;
• Estate planning records;
• Personal correspondence.

It’s usually never a smoking gun in these cases. Rather, the courts will analyze these elements as a whole.

Some examples of undue influence affecting a will in Fort Lauderdale or the surrounding areas might include:

• A will leaves property to others in a way you might not expect given the circumstances (i.e., close family members are excluded in favor of others, despite any obvious explanation);
• Testator was especially dependent on or trusted the person who exerted influence (this is sometimes referred to as a confidential relationship, such as a caretaker or attorney);
• Frailty or illness made the testator susceptible to undue influence;
• Influencer took advantage of the testator and benefitted from the will by substituting his or her own intentions for that of the testator.

Most of these cases are litigated solely on the basis of circumstantial evidence. That’s because the single most important witness in the case – the testator – is dead. Plus, deceptive conduct typically doesn’t take place out in the open. Someone who coerces an elderly grandparent to alter a will probably isn’t going to send a written message exactly spelling out his or her intentions. That means such claims must be supported by circumstantial evidence.

If you believe undue influence was a factor in your deceased loved one’s will, we can help you determine if you have a viable claim.

Contact the Fort Lauderdale Lawyers at The Ansara Law Firm at (954) 761-3641 or by email. Serving Broward, Miami-Dade and Palm Beach Counties.