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THE SEVEN SIGNS OF UNDUE INFLUENCE IN FLORIDA: looking for clues to that invalid will and undue influence

Uncategorized Dec 15, 2013


Is there a will that cuts you out? Disinherits you? Maybe gives you less than a previous will does?  You have your suspicions about the Florida will that was filed with the court.

How do you know if a Florida will was the product of undue influence?

Are you involved in a Florida probate where you question what’s going on?

Is there an estate dispute brewing in Palm Beach, Stuart, Ft. Lauderdale or Boca Raton but you’re not sure if you want to get involved? Probate disputes in Florida are common and making a determination whether you are going to hire a Florida probate lawyer or an estate lawyer may be a challenge. How good is your case and how much can you win?

So, let’s consider one of the most common types of estate disputes or probate litigation. If you believe a will, or even a trust, or a lifetime gift of money or property, is invalid because it was obtained by undue influence, how do you get the will set aside? How do you win your inheritance lawsuit or even decide to begin an estate dispute?

Background:  A will or a trust or a gift that is caused by undue influence can be set aside, overturned and declared invalid. But, you have to prove your case: this is a will contest or will dispute, meaning it’s litigation and you will be involved with a probate trial.

Here are the seven signs of undue influence to look for. Note that each of the seven signs of undue influence have two over-riding, common characteristics:  access and control.

If you are involved in probate litigation in Florida, knowing whether the following facts or circumstances existed when the will was signed will help you determine your rights and whether or not you want to try to have the will set aside declared invalid.

  1. No free act ! The will was not the idea of the person who signed it.  Control !The idea to create a new will or sign a new will was the idea of the person who is the main beneficiary of the will and not your mother or father who signed the will.  Put another way:  who inherited the most from this “new” will?  Who gained ?
  2. Who hired the will attorney ? Did the person whose will was supposedly prepared and signed the person who actually hired the attorney who prepared, or wrote, the will? Or did the person who benefitted from the new will hire the lawyer?  Ask yourself:  whose attorney is she/he?  And who is the real client?
  3. Who paid the attorney who prepared or wrote the will? If your mom or dad did, that suggests that mom or dad wanted a new will.   Did mom write a check, mail the check after receiving and reviewing an invoice?  If they didn’t pay the attorney who wrote the will, ask your self: who did? If it was the person who benefitted from an inheritance in the new will, that’s important and the third of the ‘seven signs.’
  4. How did mom or dad get to the lawyer’s office or otherwise sign the will? Did the person who was making the money grab drive mom or dad to the lawyer’s office for the will? That’s access! Or, how did mom or dad even get to sign the will? Did the new beneficiary of the Florida will download it from the internet? Or maybe that beneficiary was the one who drafted the will itself and stuck it in mom’s face to sign.
  5. Accomplices !  Who obtained or procured the witnesses to the Florida will?  In Florida, like most states, a will is only valid if it witnessed.  It must be witnessed by two persons over age 18, who personally see your mom or dad sign the will in their presence and who also sign the will as witnesses in your parent’s presence.  Who got the witnesses to act as a witness?  Who asked these people (the witnesses) to watch mom or dad sign a will?  Was it the lawyer?   Your mom or dad?  Or, was it the person who benefits most under this “new” will?
  6. Physical presence!  Who was present at the will signing? Was the new estate beneficiary with mom or dad at the will lawyer’s office when the will was signed? If the “undue influencer” was present at the signing of the new will, this is tell-tale and very important. Access  !  If you begin estate litigation, you want to know who was there, where were they and what happened–every second of that will signing.  You are going to have to re-construct that entire will signing event.
  7. Possession is 9/10ths of the law !  Who took the original will? After the will was purportedly signed by mom or dad…..who took it? Did mom tell her estate attorney to keep it? Did mom put it in her safe deposit box as she did with all her other important documents? Or, did the person who benefitted the most from the new will take the original?   Control ! Access ! Did someone control mom and in essence make mom sign the new will?

Some final notes on undue influence in Florida.  Remember that when you have a probate lawsuit or an estate litigation matter, you have to prove your case to the probate judge.  This is serious stuff, folks.  You can’t just go into court and be heard.  And you can’t just have your Florida estate lawyer argue for you.  I hate to break it to you but your lawyer opening his or her big mouth is not evidence !  No matter how smart he or she is or how good they sound.  How do you win an undue influence case in Palm Beach or Broward County?  You have to call witnesses, elicit testimony, introduce documents and make your day in probate court.   Who was the substantial beneficiary? Having a successful undue influence case in Florida, or, put another way, to invalidate a will in a Florida probate based upon undue influence, requires that the person who committed the undue influence was a substantial beneficiary under the new will-either directly or indirectly. Did the “bad” person get a large inheritance where previously he or she did not get any? Did his or her boyfriend or son or daughter inherit? Ask yourself:  Who stood to gain and who did gain?

What if you have only a handful of these seven signs of undue influence? What if you are not sure if all seven exist?   Well, having many helps your case and your lawsuit and can be bad news for the person who stole your inheritance.   You may have a great case even if you only know of 2, 3 or 4 signs.  You may be able to discover more signs of undue influence once you get in the game, get a lawyer and start undue influence discovery to get to the bottom of who got the will and how it was signed.  Short point:  if you don’t have all seven signs of undue influence, it’s not necessary bad news.    You may still have a great case.  And remember, since you were probably not there to witness the undue influence, you may not learn any of these facts or circumstances about undue influence until you start taking depositions, issuing subpoenas and getting answers to your questions.  If you have the stomach for it, get in the game !  Get serious and hire a serious lawyer !

Determining what your inheritance rights are requires thoughtful analysis and consideration of all the facts, some which may not yet be known. You may have an idea of the undue influence, and how it may have been committed, and who may have committed it, but you may not know every last fact and circumstance. While that’s a good start to any probate lawsuit, or any probate litigation to overturn a will, at trial you will absolutely need every fact and circumstance. That’s because to prove undue influence, which is a form of fraud, requires specificity, particularity. You have to demonstrate, with substantial credible evidence, to the probate judge, that somebody committed undue influence on a person who is susceptible to pressure or coercion or fraud, lies, or misstatements.

In other words, you are going to have to demonstrate who committed the undue influence in Florida, how the undue influence was committed, when it was committed, and what form the undue influence took. Knowing the seven signs of undue influence, and knowing what to look for, will help you evaluate whether you have a strong case or not, and whether you want to begin probate litigation and a Florida probate court.

For good or bad, probate courts in Florida are very familiar with the issue of undue influence, including what facts are required to prove undue influence, as well as what is required to defend a claim of undue influence. There are many good estate lawyers, and trial lawyers who handle probate litigation in South Florida who do an excellent job for their clients. Consider talking to an experienced Florida estate litigator to get his or her view about your case and the facts and circumstances which you may know, or may not yet know, about the undue influence. And remember, in the estate world, in the probate world in South Florida, they are very short statutes of limitations. You may literally only have days or months to exercise your rights and seek to overturn a will, or argue that undue influence was committed. If you fail to act within those very short probate statutes of limitations, you may be prohibited from ever seeking relief or seeking damages in the future. If you’re serious, find an exceptional probate litigator and get in the game. Advocate hard. Litigate smart.