Undue Influence

Undue Influence

A common ground for contesting a Last Will and Testament (“Will”) or trust in probate court is that of “undue influence.”

But what, exactly, is undue influence for purposes of a Will contest and how is it proven in court?

This is a complex and complicated area of probate law.

But make no mistake: it is one worth understanding.

If you believe you have been cheated out of your inheritance because of the fraudulent actions of another, it is important to have an understanding of what factors constitute or may constitute undue influence.

On the other hand, those who have been accused of undue influence will need to understand legal concepts around the burden of proof and what evidence is required to prove a claim.

Either way, if a claim of undue influence arises for you, you should always consult with an experienced estate and probate lawyer near you.

Undue Influence – Varying Definitions, But Common Factors

Undue influence is an elusive concept that is difficult to define or to codify. As a result most states have their own statutory definitions of undue influence which are further refined, explained and expounded upon by caselaw.

Although a common definition does not exist, there are general concepts that consistently apply situations and claims of undue influence.

For one thing, undue influence is a species of fraud.

For another, undue influence arises in the context of a confidential relationship.

But it is more than just mere persuasion. To constitute undue influence, the perpetrator (referred to as the “proponent” in a Will contest) must exert his or her influence over the victim (i.e., the testator or trust maker) to such an extent that he overpowers the victim’s free will.

Gifts or devises procured by undue influence can be set aside.

Shifting Burdens and Circumstantial Evidence

Because most cases of undue influence do not occur in the open or when there are witnesses available, proving a claim of undue influence is difficult. Undue influence cases frequently rely on circumstantial evidence.

In a Will contest, the person contesting the Will on the grounds of undue influence has the initial burden of proof. This means that he or she must establish that:

· A confidential relationship existed between the testator and person accused of undue influence, and that

· The accused person actively procured the benefit, and that

· If allowed to stand, the person accused of undue influence would receive a substantial benefit under the Will

If these factors are established, in Florida, the presumption of undue influence arises and the burden of proof shifts to the accused person to prove by a preponderance of the evidence that undue influence did not exist.

While the mere shifting of the burden will not necessarily mean that the court will decide undue influence existed, it is an important part of proving one’s case.

Seven Factors to Determine the Existence of Undue Influence

In Florida, the seminal case of In re Estate of Carpenter established seven factors that the court can consider to determine whether the accused person “actively procured” a benefit.

As the court stressed, these criteria are neither mandatory nor exclusive. However, they do provide a guideline for assessing whether “active procurement’ existed.

The seven factors are:

1) The presence of the beneficiary at the execution of the Will

2) The beneficiary’s presence on occasions when the testator expressed a desire to make a Will

3) The beneficiary’s recommendation to have an attorney draw up the Will

4) The beneficiary’s knowledge of the contents of the Will before it was executed

5) Whether the beneficiary gave the attorney instructions on how to prepare the Will

6) Whether the beneficiary secured the witnesses to the Will, and

7) The beneficiary kept the Will (for safekeeping) after it was executed.

Florida law recognizes other factors beside the seven Carpenter factors when looking for evidence of active procurement in an undue influence action. These include:

· isolating the testator and disparaging family members

· mental inequality between the decedent and the beneficiary, and

· the reasonableness of the Will or trust provisions

What undue influence is, whether it exists, and how to prove it, is challenging at best.

Not all situations where one person influences another and the testator changes his or her Last Will and Testament will rise to the level of undue influence. On the other hand, undue influence is fraud, and it is reprehensible to take advantage of vulnerable individuals.

If you believe a Will or trust any part of it was procured by undue influence, speak to an estate and probate lawyer right away. And if you have been accused of undue influence, consult with experienced counsel to get the assistance you need.

Probate Litigation. Individualized Estate Plans. We Help You Protect Your Family.

Don’t leave planning for your future and that of your loved ones to chance. All it takes is one phone call to the Law Offices of Samantha J. Fitzgerald to ensure that your wishes will be followed, and your loved ones taken care of when you are gone. We expertly guide individuals through the complex probate process, and capably handle all aspects of the creation, administration, and settlement of trusts as well. When you work with the estate planning attorneys at the Law Offices of Samantha J. Fitzgerald, you get more than just an estate plan: you get peace of mind. Call us at 954-580-3690 or email us at: [email protected]batelawyer.com today.

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