UNDUE INFLUENCE IN FLORIDA WILL LAWSUITS: what does it really mean in a probate or will case?

Your mother is in her 80’s, and while still sharp, you know she is slowing down. Well, at least you think you do. While you don’t see her often, you hear it on the phone. Actually, you don’t call often, but when you do, you think that mom is getting older quicker. You don’t see this firsthand because you don’t visit, even though mom lives in a very nice condo near the beach in Boca Raton, Florida and she’s asked you to visit many times.  Actually, mom used to ask all the time; she stopped asking because you never visit. Nonetheless, something is causing you concern. After all, mom has a lot of money: $3 Million in the Boca Raton condo, an IRA, and a bunch of stocks and bonds and mutual funds. You are concerned about her financial health and you call her Florida probate lawyer, who is a well-respected lawyer who writes wills and trusts. She has an estate planning practice in Delray Beach, Florida, but she says she can’t talk to you because what you are asking about mom’s money is confidential and “privileged.” This frustrates you. You call mom and ask her about her finances and her estate plan but mom won’t talk to you about that. She says you only call for money and she doesn’t want to talk to you about that stuff. This convinces you that mom has lost it: that she’s got dementia or something. But you don’t call her doctors. You don’t even know who her doctors are. And you don’t call her neighbors or friends or even your sister who also lives in Florida, to make sure mom is ok, because you don’t think to do that.  But you do call mom’s stock broker: the one who manages a $1.8 Million investment portfolio of stocks, bonds and mutual funds. The stockbroker is a well-known investment manager and financial consultant in Boynton Beach, Florida. But she won’t talk to you either. Mom dies. You read the will which is filed with the clerk of court for Palm Beach County, Florida. The will leaves everything to mom’s Florida revocable trust, also called a living trust. The revocable trust leaves money to your nieces and nephews for their college education. A Florida education trust is set up. The rest of mom’s trust goes to your sister. You get nothing !

Was mom’s Florida will or revocable trust signed by mom while being “unduly influenced” by your sister ? Your sister lives with her husband and their children in Weston, Florida, about 40 minutes from mom’s condo in Boca Raton, Florida. You sense a probate fight coming in Palm Beach. “How could this happen?” you think to yourself.

Did your sister exert undue influence over your mom?

“Why did mom dis-inherit me?” you wonder.

What is undue influence?

Everyone, it seems, knows about undue influence…..somewhat. “Undue influence” is a common reaction by many family members, or heirs or descendants, who are cut out of a Florida will. Put another way, if you don’t inherit from a Florida estate or Florida trust, unhappy, even angry, beneficiaries point the finger at who DOES inherit.

But what really is undue influence? Everyone seems to throw the term around and may not know what it really means when you have a probate litigation or an inheritance lawsuit in Florida.

If a will or a trust is obtained by undue influence, if you prove this in a Florida probate court, the will or trust can be over-turned.

For good or for ill, Florida probate courts deal with the issue of undue influence often. And since we have appellate rules for probate case and Florida estates, that means that Florida appellate courts deal with undue influence. Here is what a recent Florida appellate court said this past summer about undue influence. Hopefully, it will provide some guidance. If you want a copy of the case, please email michelle@pankauskilawfirm.com.

“Undue influence must amount to “over persuasion, duress, force, coercion, or artful or fraudulent contrivances to such an extent that there is a destruction of free agency and willpower of the testator………undue influence present where person “is not left to act intelligently, understandingly, and voluntarily” and the influence operates “to dethrone the free agency of the person … rendering his act the product of the will of another instead of his own”…….. Undue influence is presumed when (i) a person with a confidential relationship with the testator, (ii) was active in procuring or securing the preparation or execution of the devise and (iii) is a substantial beneficiary thereof. …………. The active procurement element may be determined based on the following factors: presence of the beneficiary at the execution or the occasions where the testator expressed desire to devise, recommendation of an attorney, the beneficiary’s knowledge of the contents prior to its execution, giving instructions to the drafting attorney, securing witnesses and safekeeping of documents after execution. ”

What’s this all mean for people who want to fight the probate in Florida? Well, a close relationship with mom is not enough. Whose idea was it to get the will? Who saw to it that mom signed the will? Did this whole idea of signing a will and dis-inheriting you come from mom…..or your sister? Undue influence discovery, or an inheritance lawsuit in Florida, may be the only way to learn the truth.

What’s your inheritance strategy?