Undue Influence In Florida Wills
When a loved one passes away, the last thing that most people want to contend with is the possibility that something might not have been right during their last days. Sometimes, when a deceased person’s will is read at probate, the bequests are so startlingly out of character that it is impossible not to suspect undue influence – but proving it can be another matter. If you suspect that there may have been any kind of undue influence in your loved one’s will or other estate planning documents, it is a good idea to consult an attorney to determine how best to approach the problem.
A Type Of Fraud
Florida law is clear that if a will (or any specific part of a will) is proven to have been unduly influenced, it is immediately invalid. The statute also covers ‘fraud, duress, [and] mistake,’ which is appropriate given that undue influence qualifies as a type of fraud. Undue influence is seen by Florida courts as overruling another person’s free will, and this kind of conduct is taken very seriously, given that most people who are making wills are elderly and may be in a psychological position where undue influence can be especially successful.
That said, undue influence can often be quite difficult to prove, simply because no one attempts to unduly influence someone out in the open, in the presence of other people; much of the conduct that might be damning is kept under wraps. It can be done, most often with estate planning and financial records, but because it is so often secretive, all your evidence may be circumstantial.
The Seven Signs
Florida law has what is called a rebuttable presumption in favor of undue influence (that is, the court will assume undue influence has taken place) if three factors are present: (1) someone receives a substantial benefit under the will; (2) had a ‘confidential relationship’ with the deceased person; and (3) they actively procured the will under which they receive that substantial benefit. The first two are easy to prove, but the third can be difficult. A case called In re Estate of Carpenter provides seven signs that can be used to determine whether “active procurement” actually happened. They are:
- Being present when the testator signed the will;
- Being present at the points when the testator expressed intent to make a new will;
- Recommending an attorney to draw up the new will;
- Knowledge of the new will’s contents;
- Giving instructions to the attorney drawing up the new will;
- Being the one to get the witnesses to sign the new will; and
- Keeping the new will “safe” once it is signed and witnessed.
You need not have all these factors present in order to conclude there has been active procurement, but they are a good guide to help you determine the answer to that question in your family’s specific situation.
Contact A Hollywood Probate Attorney
Everyone has the right to dispose of their estate as they see fit, but the decision must be left up to them – no one has the right to run roughshod over anyone else’s choices, especially if they try to do so in an improper way. The Law Offices of Steven A. Mason, P.A. have handled many of these cases, and Hollywood probate attorney Mason is ready to help you to determine whether there has been any undue influence in your loved one’s case. Contact our Hollywood offices today to schedule a consultation.