Under Florida law, a Will is void if the execution is procured by undue influence. This is outlined in Florida Statute 732.5165 Florida Statute (2021). The burden of undue influence lies with the party seeking to invalidate the Will according to Florida Statute 733.107.
To constitute undue influence, the influence must amount to over persuasion, duress, force, coercion, or artful or fraudulent contrivances to such an extent that there is a destruction of free agency and willpower of the testator. Things to look at in order to prove undue influence in an Orlando, Florida Will contest include:
- Did the testator’s health deteriorate prior to the last Will?
- Did the testator change the beneficiaries in the last Will?
- Did the testator go to a new attorney and not the attorney he/she used in the past?
- Did someone other than the testator contact that attorney?
- Did the person other than the testator that contacted the attorney take the testator to the attorney?
- Has the testator recently been in the hospital due to deteriorating health?
- Has the testator recently had a competency exam?
- Has the testator recently had a neurological exam?
- Has the testator recently been kept from his/her family?
- Is there any medical evidence the testator has had an altered mind?
- Has someone other than the testator been paying the testator’s bills?
- Has the testator been recently released from a rehabilitation facility?
- Has the personal representative been changed in the most recent Will?
- Was the testator diagnosed with dementia at a time close to when the last Will was made?
- Are there medical records of impaired cognitive ability?
You will also need to take into account whether a substantial beneficiary, occupying a confidential relationship with the testator, actively procured the Will. Here are some ways you can determine whether that was the case:
- Was the beneficiary present at the execution of the Will?
- Was the beneficiary present when the testator expressed a desire to make a new Will?
- Did the beneficiary recommend an attorney to draft a Will?
- Did the beneficiary know of the contents of the Will prior to execution?
- Did the beneficiary give instructions on predation of the Will to the attorney?
- Did the beneficiary secure witnesses to the Will?
- Does the beneficiary possess the Will after execution?
In addition to considering the beneficiary, you may need to look into the actions of the family. Keep the following questions in mind:
- Has the beneficiary insulated the testator from the testator’s relatives in an effort to turn the testator against the relatives?
- Are the Will provisions reasonable?
- What were the inequities between the beneficiary and the testator regarding the mental and physical health between the two when the Will was executed?
Taking all of these questions into consideration should help you determine whether there was undue influence in a Will contest. If you believe that you’ve witnessed undue influence, a probate lawyer can help you make a determination and build a case.
If you have more questions regarding a Marital and Family Law matter, you may call Ann Marie Giordano Gilden at Ann Marie Giordano Gilden, P.A. at 407-732-7620 and set an initial consultation.
This article is for informational purposes only and does not form an attorney client privilege.