Walking a Fine Line: The Difference Between Being a Dutiful Child and Undue Influence.

In Florida, a Last Will and Testament (“Will”) is void, either in whole or in part, if it has been procured by fraud, duress, or undue influence.

When a Will is contested, the presumption of undue influence will be triggered where it is shown that a substantial beneficiary under the Will who occupied a position of confidence with the testator, actively procured a benefit under the Will.

Proving undue influence is extremely difficult to do.

And so is disproving it.

Because undue influence relies heavily on circumstantial evidence and because the testator is not available to testify, telling the difference between when someone is trying to unduly influence a testator, or when they are simply doing their best to be a dutiful child, is extremely difficult.

The Presumption of Undue Influence

Florida law creates a presumption of undue influence designed to protect against the abuse of one’s position of trust.

Once evidence of undue influence has been presented, this legal presumption shifts the burden to the person accused of actively procuring a substantial benefit in a Will or trust due to his or her confidential relationship with the decedent, to disprove the undue influence.

Not Every Confidential Relationship Constitutes Undue Influence

So, when is a close and confidential relationship between a parent and child where the child actively assists the parent undue influence, and when is it simply evidence of a dutiful child trying to help his or her elderly parent?

Unfortunately, there is no single answer to that question.

Which is why probate litigation is so difficult.

Merely having a close relationship of trust with the decedent, by itself, is not enough.

Indeed, the same evidence that can give rise to a finding of undue influence by one court can be interpreted by another court to be simply evidence of a dutiful child helping his or her parent.

To constitute undue influence, the actions taken must amount to “over persuasion, duress, force, coercion, or artful or fraudulent contrivances to such an extent that there is a destruction of free agency and willpower of the testator.”

Thus, for example, the fact that a child and aging parent have a close relationship and that the child helps the parent with tasks—in the absence of evidence that the child actively instructed the parent to change her financial accounts, or took other active measures to procure an advantage—has been held to not be undue influence.

Understanding and applying the legal concepts of “active procurement” and “confidential relationship” to any particular set of facts requires legal analysis, experience, and extensive knowledge.

Protecting Your Family is Just a Phone Call Away.

Don’t leave planning for your future and that of your loved ones to chance. All it takes is one phone call to SJF Law Group 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 SJF Law Group, 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] today.



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