Can a Palm Beach will or trust be voided based on undue influence? What is undue influence in Florida probate litigation? What factors do the courts consider on the issue of undue influence or active procurement?

The Florida Supreme Court has established a set of non-exhaustive factors for courts to consider on the issue of undue influence or active procurement:

• presence of the beneficiary at the execution of the will;
• presence of the beneficiary on those occasions when the testator expressed a desire to make a will;
• recommendation by the beneficiary of an attorney to draw the will;
• knowledge of the contents of the will by the beneficiary prior to execution;
• giving of instructions on preparation of the will by the beneficiary to the attorney drawing the will;
• securing of witnesses to the will by the beneficiary; and
• safekeeping of the will by the beneficiary subsequent to execution.

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

Florida Statute 732.5165

• Florida Statute 732.5165 provides that a “will is void if the execution is procured by fraud, duress, mistake, or undue influence.”
• A purported undue influencer would be one who is a substantial beneficiary under the procured will, who holds a confidential relationship with the testator, and who procured the will itself.
• As explained above, these cases often center around circumstantial and direct evidence and a determination to be made by a trial court’s consideration of the facts of each case and the non-exhaustive list of “Carpenter” factors.