Everyone seems to know that a Florida will or trust can be voided based on undue influence. But what exactly is undue influence and how do you prove undue influence in a Florida probate litigation case? The 2015 opinion from the Florida Fourth District Court of Appeal, in Blinn v. Carlman, 159 So. 3d 390 (Fla. 4th DCA 2015), succinctly sets out the standards and definition of undue influence with the relevant authority cited:
“When a will is challenged on the grounds of undue influence, the 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.” Levin v. Levin, 60 So. 3d 1116, 1118 (Fla. 4th DCA 2011) (quoting Raimi v. Furlong, 702 So. 2d 1273, 1287 (Fla. 3d DCA 1997)). The doctrine of undue influence is based on the theory that the “testator is induced by various means, to execute an instrument which, although his, in outward form, is in reality not his will, but the will of another person which is substituted for that of testator.” In re Winslow’s Estate, 147 So. 2d 613, 617 (Fla. 2d DCA 1962) (citation omitted). “Undue influence is not usually exercised openly in the presence of others, so that it may be directly proved, hence it may be proved by indirect evidence of facts and circumstances from which it may be inferred.” Gardiner v. Goertner, 110 Fla. 377, 149 So. 186, 190 (1932) (citation omitted).
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).
Based on the facts presented, the trial court (who was affirmed on appeal) determined that the decedent was susceptible to undue influence based on his declining health, and the will at issue was prepared and executed under what the Blinn court termed “under most suspicious circumstances.” Id. at 392.
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.