Florida Statute 733.107(2) addresses undue influence in probate proceedings. Understanding how the presumption works and what evidence courts examine can help clarify when a will may be vulnerable to challenge.
The Statutory Framework
Florida Statute 733.107(2) reflects Florida’s public policy against the abuse of fiduciary or confidential relationships. The statute establishes a presumption that shifts the burden of proof when the required elements are shown.
When Does the Presumption Arise?
The presumption of undue influence arises when the three elements are established:
- A confidential relationship between the testator and the alleged influencer;
- A substantial benefit to the alleged influencer; and
- Active procurement of the will or other testamentary document by the alleged influencer.
Once these elements are met, the burden shifts to the alleged influencer, who must disprove undue influence by a preponderance of the evidence.
Understanding Active Procurement
In In re Estate of Carpenter, the court identified a nonexclusive list of seven factors relevant to determining whether a beneficiary actively procured a will. A court may examine:
- Whether the beneficiary was present when the will was executed;
- Whether the beneficiary was present when the testator expressed a desire to make a will;
- Whether the beneficiary recommended the attorney who prepared the will;
- Whether the beneficiary knew the contents of the will before it was executed;
- Whether the beneficiary gave the attorney instructions concerning preparation of the will;
- Whether the beneficiary secured the witnesses to the will; and
- Whether the beneficiary kept the will after execution.
These factors are not exhaustive. No single factor necessarily determines the outcome; the court evaluates the circumstances as a whole.
Other Evidence That May Matter
Additional evidence may help show who controlled or directed the estate-planning process, including:
- Who paid for preparation of the documents;
- Where the documents were signed;
- Who arranged the signing appointment;
- Who communicated with the drafting attorney; and
- Whether the testator received independent advice.
What Conduct Qualifies as Undue Influence?
Undue influence must involve overpersuasion, duress, force, coercion, or artful or fraudulent conduct to such an extent that it destroys the testator’s free agency and independent will.
Influence alone is not necessarily improper. The central issue is whether the alleged influencer overpowered the testator’s own judgment so that the document reflected the influencer’s wishes rather than the testator’s true intent.
Key Questions to Ask
When determining whether undue influence took place, consider the following questions:
- Did the testator lack testamentary capacity when the will was made?
- Was the testator subjected to undue influence?
- Was there intentional interference with an expected inheritance?
- Do medical records show that the testator had dementia or Alzheimer’s disease when the will was made?
- Did health conditions, medications, isolation, dependency, or cognitive decline affect the testator’s ability to understand the document?
- Did a beneficiary participate in selecting the attorney, giving instructions, arranging witnesses, or keeping the executed will?
- Does the will represent a significant or unexplained departure from the testator’s prior estate plan or stated wishes?
An undue-influence analysis is highly fact-specific. The inquiry generally begins with the relationship between the testator and beneficiary, the benefit received, and the beneficiary’s involvement in procuring the document. Medical records, attorney communications, witness testimony, earlier estate plans, and evidence surrounding execution may all be important.
If you have more questions regarding a Marital and Family Law matter, Guardianship or Estate matter you may call Ann Marie Giordano Gilden at Ann Marie Giordano Gilden, P.A. on 407-732-7620 and arrange 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.