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Undue Influence

Undue Influence and related Probate (Estate) and Trust Litigation in St. Petersburg, Clearwater, Tampa, Sarasota, Pinellas County, and surrounding West Florida areas.

Undue influence is a cause of action used to challenge the validity of a last will and testament, trust or related testamentary instrument.  Generally, undue influence occurs when a third-person exerts their influence on the person making a will or trust to the extent that the testamentary document reflects the intent of the undue influencer, rather than the testator.

The susceptibility to undue influence is often greatly heightened in the latter years of one’s life, where certain elder diseases and related infirmities of old age cause the individual to become increasingly depending on third parties.  This dependence can often be manipulated, and taken advantage of, by opportunistic third parties who have their own financial interest in mind.  Quite often, elderly persons with weakened physical and/or cognitive abilities have a desire to please those around them, and the mere mention of drafting a will or trust could lead the elderly adult into executing an instrument they would not have otherwise thought to prepare themselves.

One of the chief evidentiary issues with undue influence claims is that most all of the inappropriate acts occur in the privacy of the elderly person’s home, when only the undue influencer and the victim are present; and since these contests occur after the victim has passed away, only the undue influencer remains available to testify.  The State of Florida acknowledged this issue by enacting Florida Statute 733.107, which implemented a presumption of undue influence, known as the “Carpenter Presumption” if certain factors are shown.  The three factors that must be shown are that the undue influencer:

  1. maintained a confidential relationship with the testator;
  2. stands to be a substantial beneficiary under the will or trust; and
  3. were active in procuring the will or trust.

The first two prongs are generally relatively easy to meet.  The “active procurement” prong, however, is where your case will be won or lost.  In determining whether active procurement was present, the Florida Supreme Court listed seven non-exclusive factors that should be considered by trial courts in determining whether active procurement exists.  They include:

  1. presence of the beneficiary at execution of the will or trust;
  2. presence of the beneficiary on occasions where the testator expressed a desire to make a will or trust;
  3. recommendations by the beneficiary of an attorney to draft the will or trust;
  4. knowledge of the contents of the will or trust prior to execution;
  5. giving of instructions from the beneficiary to the drafting attorney;
  6. securing witnesses to the will or trust by the beneficiary; and
  7. safekeeping the will or trust after execution.

This list is non-exclusive and a claimant need not show all seven factors to prevail.  This is simply  a listing of possible factors considered by the Court, and the existence of any of these factors could lead to the presumption.

This presumption, however, is a rebuttable one.  Once the presumption is established, the burden shifts to the proponent of the challenged will or trust to prove to the Court that the challenged instrument was not the produce of undue influence.

If you have concerns about potential undue influence claims, please contact our office, as our attorneys routinely deal with these type of estate (probate) and trust disputes in the courts of St. Petersburg, Clearwater, Tampa, Sarasota and the surrounding West Florida areas.

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