Challenging a will on the grounds of undue influence can be a very difficult process.  These types of cases are very challenging to litigate and prove in court.  They are often very fact specific and require an experienced litigation team with the skills and resources necessary to investigate and try complicated will contest cases.  

In Florida, a will can be contested on a number of different grounds, including:

• Improper execution of the will
• Fraud or duress
• Lack of mental (testamentary) capacity
• Undue influence exerted over a testator

Success in an undue influence case generally requires the petitioner to show the testator (decedent) was coerced, threatened or forced to execute the will as a result of the undue pressure or influence of another person.  To put it simply, the petitioner must demonstrate that the testator did not act freely and voluntarily at the time of signing his or her will.  

When a will is contested on the grounds of undue influence, the petitioner has the burden of establishing a presumption of undue influence.  This generally means that the petitioner will have to prove the elements of undue influence by a preponderance of the evidence in the case.  These elements are as follows:

• The undue influencer is a substantial beneficiary under the contested last will and testament;
• The undue influencer stood in a confidential relationship with the individual who signed the last will and testament; and,
• The undue influencer “actively procured” the last will and testament.

The third element, “active procurement,” can be very difficult to prove in court.  Showing of active procurement is generally based solely upon circumstantial evidence since the maker of the will is no longer alive.

In In Re Estate of Carpenter, 253 So.2d 697 (Fla.1971) the Florida Supreme Court reviewed earlier cases involving active procurement in order to develop a number of factors that could help trial courts evaluate this element:

• The presence of the undue influencer at the time the will was executed;
• The presence of the undue influencer on those occasions when the decedent expressed the desire to draft a will;
• The undue influencer recommended an attorney to draft the will;
• The undue influencer had knowledge of the contents of the will before the will was executed;
• The undue influencer gave instructions to the attorney as to how to prepare the will;
• The undue influencer secured the witnesses to the will; and,
• The undue influencer kept the will in safekeeping after it was executed.

The court in the Carpenter case made it very clear that a petitioner in an undue influence case does not have to prove all of the seven factors listed above.  Moreover, these factors are not exclusive and courts are permitted to consider other indicators of active procurement when evaluating a case. 

If a petitioner is able to establish a prima facie case of undue influence, the burden of proof will shift to the alleged undue influencer (or the proponent of the will) to prove the will was not procured through undue influence.  Should the alleged undue influencer be unable to meet his or her burden of proof, the last will and testament will be declared void and set aside on the grounds of undue influence.

Winning an undue influence will contest case will turn upon the specific facts and circumstances of the case.  If you suspect a will may have been procured through undue influence, you should consult with a knowledgeable team of probate litigation attorneys.  Undue influence claims are very difficult to try in court and are best handled by experienced attorneys who know what it takes to properly investigate and litigate significant will contest cases.