Thinking about bringing an undue influence lawsuit in Florida about a big gift?
Maybe someone gave something away or put someone’s name on a Florida joint bank account? Or, maybe you just read your mom’s will or your dad’s revocable trust and believe it’s the product of undue influence. Well, what exactly is undue influence in Florida probate and can it be used to set aside other gifts?
How Undue Influence is Used by Probate Courts in Florida
- A Florida court may set aside a transaction based upon undue influence
- Only if there are specific findings of fact at trial
- Those findings of fact typically include such things as
- A person who made a large gift or created a will or a Florida revocable trust
- Was susceptible to the pressures of another (the “bad” person is sometimes referred to as the “Defendant” or the “undue-influencer“)
- The person who committed the undue influence was in a confidential relationship with the person who is the victim
- Of some type of fraud, lying, coercion, force, pressure
- Which caused the victim to give away $$$ or property, or do something in favor of the bad person
- In these circumstances, the Florida probate court can set aside or rescind a gift or a will or trust amedment
The above jpg or photo is one of me speaking about undue influence for a national legal seminar on Trying An Undue Influence Case which was presented to probate lawyers and estate litigators. The American Bar Association asked me to speak to a national audience on undue influence and how to try an undue influence case.
How Do Family Members or Beneficiaries Use Undue Influence?
- If you have been wronged by someone who took advantage of someone who was vulnerable
- You may be able to have a property transaction or a will or a trust set aside, or declared VOID based upon undue influence
- You need to file a probate lawsuit and allege specific facts since Undue Influence is a species of fraud and requires that it be pled with particularity
- You can file a request for a declaratory judgment or you can file a probae lawsuit for rescission if, for example, you believe the Florida revocable trust was obtained byundue influence
Undue Influence Can Void:
- A large gift of cash $$$
- A “sweetheart” sale of the family business
- A Florida will or codicil
- A Florida revocable trust or trust amendment which changes who inherits
- A deed of Florida real estate
- The change of a beneficiary on a life insurance policy
- The change of a beneficiary on a retirement account
- A beneficiary change on a financial account
- Putting someone’s name on a joint bank account
Undue influence has been described by Florida appellate courts as:
- ” ….over-persuasion,
- duress,
- force,
- coercion, or
- artful or fraudulent contrivances
- to such a degree that there is a
- destruction of free agency and
- willpower
In the end, undue influence is very fact specific. Because undue influence is often based upon one bad person over-powering another person who may be in a weakened state, we see a lot of financial exploitation cases against the elderly in Florida.