What is Undue Influence?

Undue influence occurs when the testator (the person making the will) is induced to act contrary to his or her own wishes and the will provisions are another person’s wishes, not actually the testator’s. 

It is important to know that it is not just any influence. Simply asking your grandparents for a larger inheritance than your siblings is influence, but doesn’t necessarily rise to the level of being undue influence. The term undue contemplates that the testator’s mind was was not under their control, but was instead controlled by persuasion, pressure, or outside influences that were so strong that he or she did not act on their own. 

How do I know if there was undue influence in Florida?

The Florida Supreme Court has established a number of non-exhaustive factors that evidence active procurement:

• The presence of the beneficiary on those occasions when the testator expressed a desire to make a will;
• The beneficiary being present when the will or its contents were discussed by the decedent and the drafting attorney;
• Knowledge of the contents of the will by the beneficiary prior to execution of the will;
• Recommendation by the beneficiary of an attorney to draw the will;
• The beneficiary bringing the client to the attorney’s office to prepare the will;
• Mental inequality between the decedent and the beneficiary;
• Giving instructions on the preparation of the will be the beneficiary to the attorney drawing the will;
• Securing witnesses to the will by the beneficiary;
• The presence of the beneficiary at the execution of the estate plan;
• Safekeeping the will by the beneficiary subsequent to its execution;
• Isolating the testator and disparaging family members;
• Lack of reasonableness of the will or trust provisions.

In re Estate of Carpenter, 253 So.2d 697 (Fla. 1971); Blinn v. Carlman, 159 So.3d 390, 391 (Fla. 4th DCA 2015); RBC Ministries v. Tompkins, 974 So.2d 569 (Fla. 2d DCA 2008); Diaz v. Ashworth, 963 So.2d 731 (Fla. 3d DCA 2007); Hack v. Estate of Helling, 811 So.2d 822 (Fla. 5th DCA 2002); Sun Bank/Miami, N.A. v. Hogarth, 536 So.2d 263 (Fla. 3d DCA 1988); Newman v. Smith, 82 So. 2d 236 (Fla. 1919); In re Auerbacher’s Estate, 41 So. 2d 659 (Fla. 1949); Peacock v. Du Bois, 105 So. 2d 321 (Fla. 1925); In re Estate of Reid, 138 So. 2d 342 (Fla. 3d DCA 1962); In re Donnelly’s Estate, 188 So. 108 (Fla. 1939); In re Estate of Witt, 139 So. 2d 904 (Fla. 2d DCA 1952).

In re Carpenter’s Estate, 253 So. 2d 697, 702 (Fla. 1971)

The list is not exhaustive, there are other factors that courts consider in determining the existence of undue influence.

Why are the active procure factors so important for undue influence litigation?

Why is it so critical? Because undue influence is very difficult to prove through direct evidence. By its very nature, undue influence is usually done secretly. Because undue influence can often be so subtle, the Florida Supreme Court has created a unique system to bringing a claim for undue influence. The person seeking to invalidate the will usually has the burden of establishing undue influence. But, in Florida, there is actually a presumption that a will or trust was procured through undue influence when the alleged undue influencer (1) occupied a confidential relationship with the testator, (2) was a substantial beneficiary, and (3) was active in processing the instrument. Newman v. Brecher, 887 So. 2d 384, 386 (Fla. 4th DCA 2004)

This first two elements are pretty straightforward. Florida courts have a very broad standard for determining whether a confidential relationship existed. It can be a technical fiduciary relationship (like a power of attorney or formal caregiver) or can be based on informal relationships where one trusts in and relies upon another. 

The second element, whether the alleged undue influencer was a substantial beneficiary, doesn’t necessarily mean they needed to receive a certain percentage of the estate. I think we can agree that a 1% share of a billion dollar estate is a substantial sum of money. 

The third element is where these factors are critical. But, what does “active in processing” the will  mean? Thankfully, the Florida Supreme Court’s factors lead to the evaluation of active procurement.  If a person challenging a will can establish some (not all!) of these factors, then the court will find the third element is met.

What does the presumption actually do?

The presumption actually switches who is required to prove their case. Essentially, the presumption means that the court begins the case with the assumption there was undue influence. This forces the undue influencer to prove that he/she did not unduly influence the testator. To put this into perspective, let’s look at another presumption in the law. You get into a car accident. You were at an intersection, and a car rear-ends you.  The law presumes that the car that rear-ended you is at fault. Why? because they should have seen your car in front of theirs and had the opportunity to stop. So, in order for the “rear-ender” to prove they are not at fault, they have to prove the accident wasn’t their fault. Maybe you stopped abruptly at a green light after weaving right into their lane.