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The Presumption of Undue Influence

By: Misa Everist on Jun 6, 2016

The Presumption of Undue Influence

There are times when a family member dies and an heir under a prior will or testamentary instrument suspects the decedent changed their estate plan because they were influenced by another family member or caretaker who benefits under the new plan.  In this instance there may be an action against that person that could invalidate the new testamentary instrument.  The perpetrator would be guilty of undue influence.  The law recognizes that these actions rarely can be proven by direct evidence because of their usual secretive nature.  Taking this into account the law has establish a presumption of undue influence when three factors are present and can be proven.  This presumption shifts the burden of proof to the perpetrator to offer a legitimate explanation.  This article will outline the proceeding for challenging a will or inter vivos transfer by a decedent when undue influence is suspected.

“Undue influence is not usually exercised 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. Goetner, 149 So. 186, 191 (Fla. 1933) to include, “the character of the transaction, the mental condition of the person whose act is in question, and the relationship of the parties concerned to each other.” Id. at 190, quoting Peacock v. Du Bois, 105 So. 321, 322 (Fla. 1923).  The degree of influence exerted will depend upon the, “bodily and mental vigor of the testatrix, for that which would overwhelm a mind weakened by sickness, dissipation, or age might prove no influence on someone with a strong mind in the vigor of life.”  Gardiner at 190.

In will contests, the party opposing the admission of a will to probate has the burden to produce evidence that supports that position.  See Hack v. Janes, 878 So. 2d 440, 442 (Fla. 5th DCA 2004).  Florida Statute § 733.107 describes the procedure to be followed in will contest cases:

    (1) In all proceedings contesting the validity of a will, the burden shall be upon the proponent of the will to establish prima facie its formal execution and attestation. A self-proving affidavit executed in accordance with s. 732.503 or an oath of an attesting witness executed as required in s. 733.201(2) is admissible and establishes prima facie the formal execution and attestation of the will. Thereafter, the contestant shall have the burden of establishing the grounds on which the probate of the will is opposed or revocation is sought.

      (2) The presumption of undue influence implements public policy against abuse of fiduciary or confidential relationships and is therefore a presumption shifting the burden of proof under ss. 90.301-90.304.

“Because § 733.107 (2) specifically mandates that the presumption shifts the burden of proof under § 90.301 through 90.304 when a presumption of undue influence arises . . . the alleged wrongdoer, bore the burden of proving that there was no undue influence.” The presumption of undue influence is properly applied to inter vivos transfers.  Cripe at 824, overruled in part on other grounds.  The requirements for a plaintiff to prevail in creating the presumption of undue influence are as follows:

    (1) Occupied a confidential relationship with the testator
    (2) Was a substantial beneficiary
    (3) Was in active in procuring the instrument

Newman v. Brecher, 887 So. 2d 384, 386 (Fla. 4th DCA 2004).

The Florida Supreme Court defined a confidential relationship as follows in Quinn v. Phipps, 113 So. 419 (Fla. 1927):

The term “fiduciary or confidential relation” is a very broad one.  It has been said that it exists, and that relief is granted, in all cases in which influence has been acquired and abused - - in which confidence has been reposed and betrayed.  The origin of the confidence is immaterial.  The rule embraces both technical fiduciary relations and those informal relations which exist wherever one man trusts in and relies upon another.,


A confidential relationship encompasses a “broad range” of technical, fiduciary, and informal relationships where there is established trust and confidence between the parties.  Allen v. Gore, 387 So. 2d 535, Fla. 4th DCA 1980.

The Florida Supreme Court described the following circumstances that may support a finding of active procurement in Carpenter, 253 So. 2d 697, 702 (Fla. 1971); accord Davis v. Foulkrod, 642 So. 2d 1129,1134 (Fla. 4th DCA 1994) to include:

a. The presence of the beneficiary at the execution of a will or on the occasion when the testator expressed a desire to make a will.
b. The beneficiary’s recommendation of an attorney to draw the will.
c. The beneficiary’s knowledge of the contents of the will before the will was executed.
d. The beneficiary’s instructing the attorney who is drawing the will.
e. The beneficiary’s securing the witnesses to the will.
f. The beneficiary’s retaining the will for safekeeping after the will has been executed.

The Court further clarified that the factors, “cannot be considered exclusive; and we may expect supplementation by other relevant considerations appearing in subsequent cases.”  The contestants, “should not be required to prove all the listed criteria to show active procurement.” Id..  In Cripe the Court held that the Carpenter factors are not exclusive, stating: 

Petitioners argue that there was insufficient proof of active procurement with regard to the deposit of the condemnation proceeds into a joint account.  There was evidence, however, that Mrs. Hare’s mental condition has deteriorated and she had become totally dependent on the Cripes.  Where there is such inequality of mental strength, active procurement can be shown by evidence, as there was here, of a request or suggestion by the dominant party.

Cripe at 824.

The presumption of undue influence only arises if the influence is exercised by a beneficiary who would benefit directly or indirectly from the document she procured.  See Carter v. Carter, 526 So. 2d 141 (Fla. 3rd DCA 1998);  Allen v. Dutton, 394 So. 2d 132 (Fla. 5th DCA 1981).  The Allen case makes clear the standard to be applied is whether the defendant receives some benefit directly or indirectly from the procured instrument.  In Allen, the Court found an attorney who was named as Executor of an Estate could be guilty of undue influence because he had absolute discretion to distribute the bulk of the decedent’s estate to charities and this endowed him a substantial beneficiary under the Will.  Id. at 134, 135.  In re Estate of Nelson, 232 So. 2d 222 (Fla. 1st DCA 1970) fixed the standard to determine if one is a substantial beneficiary for purposes of the presumption as whether the provisions of the Will confer upon the individual, “real and substantial tangible or intangible benefits.”  Id. at 224.  The Nelson case cites to the Alabama Supreme Court in Ziegler v. Coffin, 123 So. 22, 24 (Alabama, 1929) where the court found as a matter of law that the compensation the attorney trustee would receive along with the unlimited discretion and control rendered him a beneficiary under the will although he was not named as a devisee.  Id.  The Alabama Supreme Court in Little v. Sugg, 8 So. 2d 866, 881 (Alabama, 1942) held that the presumption could arise where a person who procures a will does so for the benefit of a third person.