Challenging the validity of a will on undue influence grounds is not an easy undertaking.   These types of cases can be complicated and generally require highly skilled trial lawyers with extensive experience preparing and litigating complex will contest cases.  Because the law imposes strict statutes of limitations and procedural requirements in undue influence challenges, you should consult with an experienced will contest lawyer to make certain that you fully understand your legal rights under Florida law.

The Florida Probate Code (Florida Statute 732.5165) provides that when the execution of a will is procured by undue influence, fraud, duress, or mistake, the will is void.  Beneficiaries, heirs, and any other interested person can contest a will on the grounds of undue influence.  Where a petitioner can prove that the maker of the will did not act freely and voluntarily because he or she was threatened, coerced or forced to execute a will, the last will and testament will be void for undue influence.

Burden of Proof in Undue Influence Cases

If you file a challenge to the validity of a will on the grounds of undue influence, you will have the burden of establishing a presumption of undue influence.  You will generally be able to meet this burden if you can establish the following elements by a preponderance of the evidence in the case:

1. Substantial Beneficiary.  The alleged undue influencer is a substantial beneficiary of the will being challenged;
2. Confidential Relationship.  The alleged undue influencer stood in a confidential relationship with the maker of the will being challenged; and
3. Active Procurement. The alleged undue influencer actively procured the will that is being challenged.

The first two elements are somewhat straightforward and easier to prove than the third.  Florida courts have long recognized the challenges associated with demonstrating the third element – that the alleged undue influencer “actively procured” the will being contested.  In 1971, the Florida Supreme Court in In Re Estate of Carpenter, 253 So.2d.697 (Fla. 1971), reviewed earlier court decisions to help courts better evaluate the active procurement requirement.  In its analysis, the Carpenter Court set forth a list of criteria for consideration:

1. Physical Presence.  Was the alleged undue influencer present during the execution of the will and/or was he or she present on those occasions when the decedent expressed a desire to make a will?
2. Attorney Recommendation. Did the alleged undue influencer make a recommendation for an attorney to draft the will?
3. Knowledge of the Will.  Did the alleged undue influencer have knowledge of the terms of the will prior to its execution?
4. Instructions on Preparing the Will.  Did the alleged undue influencer give instructions on the preparation of the will to the attorney drafting the will?
5. Witnesses to the Will.  Did the alleged undue influencer secure witnesses to the will?
6. Safekeeping of the Will.  Did the alleged undue influencer safe keep the will after its execution?

It is important to understand that none of these criteria are mandatory when trying to prove an undue influence case.  Moreover, these criteria are not exclusive, meaning that a court is free to consider factors beyond these when deciding whether active procurement has taken place.

Because the maker of the will is not alive to testify as to actions of the alleged undue influencer, testimony from family members and other witnesses, records, documents and other evidence will be critical in proving your case.  Once you are able to establish a prima facie case, the burden of proof will shift to the alleged undue influencer to prove by a preponderance of the evidence that the will was not procured by undue influence.   

Regardless of whether you are pursuing or defending a will contest claim, it is important to recognize how challenging these types of cases can be. If you believe that a dishonest caregiver, advisor or other person may have unduly influenced a deceased family member, or if you are defending a will against an undue influence claim, you should discuss your situation with an experienced probate litigation attorney who can prepare and present the strongest case possible for you and your loved ones.