A will’s validity can be challenged in court if a will is signed by a testator because of the coercion, manipulation, duress or influence of another. The testator’s capacity, although possibly relevant, is not the focus of undue influence. Rather, that the testator who is declining in health or has a diminished capacity may be susceptible.
Stated differently, a will is the product of undue influence if the undue influencer’s judgment and decision-making is substituted for the testator’s judgment and decision-making. This may be evidenced during either the preparation, creation and/or execution of the will. Generally, in order to challenge a will for undue influence, the challenger has to show sufficient evidence to prove that the alleged undue influencer destroyed the free will and controlled the mind of the testator to such a degree that the resulting will or trust was the product of the mind of the undue influencer and not that of the testator.
Undue influence cases will usually be proven through circumstantial (or indirect) evidence. The reason is because undue influence is not usually exercised openly in the presence of others, so that it may be directly proved. Hence, it may be proved by indirect evidence of facts and circumstances from which the undue influence may be inferred. No one fact or circumstance, when considered alone, may be of much weight, but when combined with other facts, may be sufficient to establish the issue.
A challenger or will contestant may also be able to shift the burden of proof, meaning the other side has to prove the absence of undue influence instead of the challenger proving that the document is the product of undue influence by demonstrating that the undue influencer:
- is a substantial beneficiary of the will;
- occupied a confidential relationship with the testator; and,
- actively procured the will.
The seminal decision for undue influence litigation in Florida is the Carpenter case. In order to better understand active procurement, a challenger may look to non-exclusive factors considered by the courts in cases that followed, including:
- presence of the beneficiary at execution of will;
- presence of the beneficiary at times when testator expressed a desire to make the will;
- recommendation by the beneficiary of an attorney to draw the will;
- knowledge of the contents of the will by the beneficiary prior to execution;
- giving instructions on preparation of the will by the beneficiary to the attorney drawing the will;
- securing of witnesses to the will by the beneficiary; and,
- safekeeping of the will by the beneficiary subsequent to execution.
In the years since the Carpenter decision, Florida courts have identified three additional indicators of active procurement: isolating and disparaging family members; inequality of the mental acuity between the decedent and beneficiary; and, reasonableness of the beneficial provision.
If you believe that you have been disinherited from a will or trust because of the undue influence of another, please contact the probate and trust lawyers at Comiter, Singer, Baseman & Braun, LLP at (561) 626-2101 or toll free (800) 226-1484 to discuss your matter. The initial call is free.