When Does Undue Influence Invalidate A Will Or Trust?
Contesting the validity of a will or trust because of undue influence, fraud and duress, lack of mental capacity, improper execution of documents or another breach of fiduciary law is addressed in Florida statute §732.5165. A will or trust is void, either wholly or in part, if its execution (signing) is obtained by fraud, duress, mistake or undue influence. In all proceedings contesting the validity of a will or trust, the burden falls on the proponent of the instrument to establish its valid execution and attestation. Once that is done, the person contesting the instrument faces the burden of establishing undue influence.
Undue influence can be proven through direct and/or circumstantial evidence. If deceptive conduct is used to persuade an individual to leave assets to a specific person, if an individual is forced to sign a will or trust or is a victim of duress or coercion, or if an individual’s ability to freely make a will or trust according to his or her own wishes is destroyed, undue influence is at work. Often, those suffering from declining health have diminished capacity and are more susceptible to undue pressure and influence.
Extensive discovery of estate planning documents, medical records and financial records is required because the person who was influenced has passed away, and undue influence normally happens out of the sight of others. This painstaking piecing together of evidence is both extensive and essential to proving the existence of undue influence.
Proving Undue Influence
When can you contest a will or trust due to undue influence? Pursuant to Florida law, a presumption of undue influence arises when the person suspected of undue influence:
- Is a substantial beneficiary under the instrument
- Has a confidential relationship with the person signing the instrument
- Actively procures the instrument
The central issue in most undue influence cases involves active procurement. The Florida Supreme Court in the seminal case of In re Estate of Carpenter, 253 So. 2d 697 (Fla. 1971) listed the criteria that must be considered when active procurement is involved. These are the seven ” Carpenter factors”:
- The substantial beneficiary is present at the execution of the will.
- The substantial beneficiary is present when the testator (person making a will) expressed the desire to make a will.
- The substantial beneficiary recommends the attorney who will draft the will.
- The substantial beneficiary has knowledge of the contents of the will prior to execution (signing).
- The substantial beneficiary gives the instructions on what is to be contained in the will to the attorney drawing the will.
- The substantial beneficiary obtains the witnesses to the will.
- The substantial beneficiary keeps the will in his/her possession after its execution/signing.
We see these factors over and over in our probate, trust and fiduciary litigation cases at VanNess & VanNess, P.A. When family members are suddenly excluded from an individual’s life in his or her final years, often that person is being unduly influenced by another. The person exerting the undue influence may isolate the individual and deny him or her access to family and friends, with the hope of destroying whatever ties of affection existed between the individual and his/her family and friends. New estate planning documents are quietly prepared for the victim of the undue influence to sign — at the direction of the undue influencer. These new documents often drastically change the shares that each beneficiary is to receive under a will or trust or may even change or remove beneficiaries altogether.
The person influencing the individual has a confidential relationship with that person and may even be the one entrusted to care for him or her. The influencer may facilitate a change from the individual’s long-standing attorney to a new attorney — and participate in directing what provisions are to be in the new instruments, including naming beneficiaries. The influencer cuts out other family members or natural beneficiaries so the influencer alone receives the entire inheritance or inherits substantially more had he or she not actively procured the new instrument.
Consult An Attorney If You Suspect Undue Influence
The team of dedicated attorneys at VanNess & VanNess, P.A., is highly skilled in spotting signs of undue influence in will and trust disputes. They will listen to your concerns, review the facts of the case thoroughly and objectively, and determine if your suspicions are valid. VanNess & VanNess, P.A., is highly successful in cases involving will and trust challenges due to undue influence and accepts referrals from other attorneys who do not practice in this area of law and trust our team to handle these cases.