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 is 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.
Undue influence frequently forms a ground for contesting a decedent’s Will in probate. 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.
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 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] today.