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Undue Influence in Drafting a Will in the Orlando, Florida Area

There was an excellent article by Attorney Stephanie Cook of Shuffield Lowman in the Florida Bar Action Line, Summer 2024. It explains undue influence in drafting deeds and wills. 

What can you do if you believe your loved one has had a deed changed, or a will made or changed, because an interloper influenced them to do that? 

You should see an attorney regarding this. You can try to begin to remedy the deed now. You may be able to file an Injunction for Protection Against Elder Abuse. You can prepare yourself for a will contest against the interloper.

Questions to ponder are:  

• Is your loved one a vulnerable adult? 
• Do they have diminished capacity? 
• Do you have the loved one’s medical history? 
• Has your loved one been isolated from family and friends by the interloper?

How do you set aside a deed or will for undue influence?

To set aside a deed or will for undue influence, you must demonstrate that the deed resulted from over-persuasion, duress, force, coercion, or artful or fraudulent contrivances to such a degree that there is destruction of the free agency and willpower. Given, therefore, the difficulty in discovering direct evidence thereof, Florida law developed factors that courts consider in applying a presumption that a transaction was procured by undue influence and a resulting shift in traditional burden of proof. 

That a rebuttable presumption of undue influence may arise under certain circumstances, if the contestant can establish the substantial beneficiary of the transaction (1) held a confidential relationship with the decedent, and (2) was active in the procurement of the contested document. If these factors are established, a presumption of undue influence arises. This is the standard to contest a will and deed by undue influence. 

In any transaction or event in which the presumption of undue influence applies, the presumption implements public policy against abuse of fiduciary or confidential relationships and is, therefore, a presumption burden, a presumption shifting the burden of proof under Florida Statutes 90.301-90.304. 

Florida Statute 733.107(2) makes clear that once the presumption arises in a case challenging a deed or any document, the burden of proof is on the defendant throughout the remainder of the proceedings to prove there was no undue influence. Florida Statute 733.107(2) provides that a presumption of undue influence, once it arises, applies to all testamentary challenges, including trust contests and challenges to inter vivos gifts. 

If you have more questions regarding a Probate matter, you may call Ann Marie Giordano Gilden at Ann Marie Giordano Gilden, P.A. at 407-732-7620 and set an initial consultation. You may also visit my website at: https://www.annmariegildenlaw.com 

This article is for informational purposes only and does not form an attorney-client privilege.