While you can contest a will on a number of different grounds, ranging from improper execution to fraud or duress, undue influence is the most common basis for challenging a will.  Undue influence occurs when the testator (the person making the will) is not able to freely and voluntarily execute the will because he or she was coerced, threatened or forced to do so as a result of the undue pressure or influence of another person.  In short, the theory is that the pressure or influence exerted over the testator was so strong that it destroyed his or her free will and, therefore, the will may not reflect the testator’s true wishes. 

Undue Influence Challenges in Florida

While the general concept of undue influence is easy to grasp, you may be wondering when a will can be legally challenged and set aside. Under the Florida Probate Code (Florida Statute 732.5165), when a will is “procured by fraud, duress, mistake or undue influence” the will is void.  Any person who has an interest in the estate may bring an action to challenge a will on the grounds of undue influence.  An action can only be brought after the testator has died.  The action is commenced by filing a petition for the revocation of probate with the probate court.

If you decide to file a petition to contest a will for undue influence you will have to produce evidence that establishes a presumption of undue influence.  In order to meet your burden, you must prove the following elements by a preponderance of the evidence:

1. The undue influencer is a substantial beneficiary of the contested will;
2. The undue influencer held a confidential relationship with the testator; and,
3. The undue influencer actively procured the will.

The Florida Supreme Court in the case of In Re Estate of Carpenter, 253 So.2d 697 (Fla. 1971) set forth several criteria to help courts determine whether the beneficiary (the “alleged undue influencer”) may have actively procured the will:

1. Presence of the beneficiary at the execution of the will;
2. Presence of the beneficiary on those occasions when the testator expressed a desire to make a will;
3. Recommendation by the beneficiary of an attorney to draw the will;
4. Knowledge of the contents of the will by the beneficiary prior to execution;
5. Giving of instructions on preparation of the will by the beneficiary to the attorney drawing the will;
6. Securing of witnesses to the will by the beneficiary; and,
7. Safekeeping of the will by the beneficiary after its execution.

According to the Carpenter court, the above criteria are not exclusive, nor are they mandatory, to show that active procurement has taken place.

The Presumption of Undue Influence

In 2002, the Florida Legislature amended the Florida Probate Code to create a presumption of undue influence.  Under Florida Statute § 733.107 if the petitioner is able to establish a prima facie case of undue influence, the burden of proof will then shift to the proponent of the will (the  alleged undue influencer) to prove by a preponderance of the evidence that there was no undue influence.

Undue influence cases can be challenging and difficult.  If you suspect a loved one was the victim of undue influence, or if someone is claiming you have unduly influenced a testator, you should seek the representation of an experienced probate litigation lawyer.  These cases are very fact specific and require the skills and expertise of an attorney who knows how to undertake a thorough investigation of the matter in order to present the strongest case possible to the court.