Sometimes having a Last Will and Testament (“Will”)—even one that has been properly executed— isn’t enough to avoid litigation during probate. One growing area of concern caused by the rapidly increasing number of people over 65 and cases of elder abuse, is that of undue influence.
What is Undue Influence?
Although a number of complicating factors make defining and legislating undue influence difficult, undue influence exists when one person in a fiduciary or confidential relationship forces his own will on that of another (i.e., the influenced person).
Under Florida probate law, a “confidential relationship” is one where there is significant trust and confidence between two people. One of the most common examples of this is the relationship between a guardian and his ward, or between close family members.
Undue influence is a form of fraud or duress.
In such cases, the person contesting the Will asserts that the Will is invalid because it was the production of someone’s undue influence on the testator. In other words, he or she argues that the Will is invalid because it is not a true reflection of the testator’s desires and wishes, but is the product of fraud or duress brought about by the undue influencer.
How is Undue Influence Proved in Probate?
Because, as mentioned above, undue influence is a species of fraud, it is not easy to prove. Most of the behavior associated with undue influence is not openly displayed in front of other people. As a result, undue influence can rarely be proven with direct evidence. While all cases vary, undue influence usually has to be proven by indirect, or circumstantial evidence.
Establishing that the testator was susceptible to undue influence, because of his or her age, weakened health or diminished mental capacity (for example, dementia), can, when coupled with other evidence, assist in proving undue influence.
Florida’s statutory and case laws articulate the elements needed to prove a case of undue influence and they establish the factors that will create a presumption of undue influence. However, it is important to bear in mind that the sheer variety of circumstances and situations that can give rise to an allegation of undue influence make it almost impossible to pinpoint any one thing. Rather, the totality of the circumstances must be taken into consideration.
Will contests are stressful. And those based on allegations of undue influence can be especially difficult for both the accused beneficiary and the parties who believe that their loved one was improperly influenced to write or alter his/her Will. These are complicated and difficult matters that are best handled by an experienced estate and probate lawyer.
Talk to Our Estate Planning Attorneys
Our team here at SJF Law Group works hard to ensure that your wishes will be followed, and your loved ones taken care of when you are gone. Our estate planning lawyers expertly guide individuals and families through the complex probate process and capably handle all aspects of the creation, administration, and settlement of estates and trusts. We pride ourselves on combining the personalized service and attention of a boutique law firm with the talent and legal acumen of a large firm.
As trusted probate and estate planning lawyers, we serve clients in the vibrant communities of Plantation, Fort Lauderdale, Boca Raton, West Palm Beach, and Miami, FL. We are also pleased to offer the options of both in-person and virtual appointments throughout Florida to make our services accessible no matter where you are located.
If you want to discuss your specific situation with one of our estate planning lawyers, contact SJF Law Group at 954-580-3690. You can also fill out our contact form. We take pride in responding to inquiries in a timely manner.