Undue influence is one of the most common ways to challenge a will and invalidate it. Keep in mind its not as simple as just telling a judge about all the unfair stuff you saw in the life of a loved one proving a will contest requires you to prove to the judge that you have evidence. Probate evidence is not always easy to come by.
- What is undue influence. Undue influence is a judicially created defense to transactions that have been imposed upon weak and vulnerable persons that allows the transaction to be set aside. This includes last will and testaments in Florida.
- What do you have to prove? Undue Influence has four elements. You must show a victim is susceptible to the overreaching influence, then you must show the opportunity to exercise undue influence. Examples include confidential relationships and relationships like fiances, parent childm trustee and beneficiary etc. Third you must show EVIDENCE the Defendant was inclined to act and lastly you have to reveal an “unnatural or suspicious transaction.”
- In other words, you dont have to prove the actual influence you have to prove opportunity, susceptibility and the “fishy transaction.”
- Proving this stuff can be difficult and if you think you have a case its time to ask how are you going to prove it.
Proving this stuff can be difficult and if you think you have a case its time to ask how are you going to prove it.
Fla. Stat. §733.107 provides that, when contesting the validity of a will, the burden of proof shifts. First, the proponent of the will, i.e. the defendant, must establish that the will was properly executed. If the defendant initially proves that the Will was signed and properly witnessed, then the burden to prove undue influence shifts to the plaintiff. Fla. Stat. § 733.107 recognizes that a presumption of undue influence should apply against those in positions of trust, such as a fiduciary, actively procure a will for their own benefit.
When Florida courts examine whether a defendant “actively procured” a will, they look at several factors including:
- Was the defendant present at the signing of the will?
- Was the defendant present when the Decedent discussed a desire to make a will?
- Did the defendant recommend an attorney to draft the will?
- Did the defendant know what the will would say before it was signed?
- Did the defendant instruct the drafting attorney regarding preparation of the will?
- Did the defendant secure the witnesses to the will?
- Did the defendant retain the original signed will for safekeeping?
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