Florida Undue Influence Law

Undue influence in Florida is a cause of action used to challenge the validity of atestamentary document, whether a Last Will & Testament or a Trust.  As the Second District Court of Appeal in Florida noted, “undue influence, as it is required for invalidation of a will, must amount to over-persuasion, duress, force, coercion, or artful or fraudulent contrivances to such a degree that there is destruction of the free agency and will power of the one making the will. Mere affection, kindness or attachment of one person for another may not of itself constitute undue influence.”  Heasley v. Evans.

1. Considering an attempt to invalidate a will or trust through undue influence? Here are some things to consider.
2. Competency is not the actual issue in undue influence, however just like with incompetency those who are older or in declining health may be more susceptible toundue influence.
3. Undue influence is predicated like most will contests (excepting a claim that it was not executed properly) the crux of the issue is whether or not the will is against thetestator’s interest.
4. It is not unusual that the only evidence of undue influence is circumstantial, as the conduct that amounts to undue influence (if present) is not normally seen by others. To create a presumption of undue influence there must be a finding of a confidential (or fiduciary) relationship, the active procurement of the will by the beneficiary and a substantial benefit to that beneficiary.
5. “Active Procurement” is usually the issue litigated in adversary proceedings.
6. According to Fla. Stat. 733.107 the presumption of undue influence is rebuttable.
7. Once proper execution of the Will (or trust) has been established, the individual challenging the documents has the burden of presenting evidence to prove the elements of undue influence by a preponderance of the evidence. Unlike a criminal case, where the government must prove its case to the exclusion of any and all reasonable doubt, the burden of proof is the lesser standard of a preponderance. If the case of undue influence has been established by the contestant, the burden of proof then shifts to the proponents of the will, who must come forward with evidence that the will (or trust) was not the result of undue influence.

Undue influence can only be challenged after the testator has died, so it can require extensive discovery and as previously stated this can be costly in terms of both time and money.

Want to learn more about undue influence and the other ways to challenge a Will or Trust in Florida? Check out our FAQ: http://www.pankauskilawfirm.com/