The last element required to raise the presumption is that of active procurement.
Active procurement has been defined by reference to the definition of “procure,” meaning “to get by special effort; [to] obtain or acquire * * *; to bring about; [to] effect.” Davis v. Foulkrod, 642 So. 2d 1129, 1134 (Fla. 4th DCA 1994)(citing American Heritage Dictionary of the English Language 1445 (3d ed. 1992)). This is often the most difficult element to prove and the element which most cases revolve around.
Active procurement will only arise if a person in a confidential relationship with the testator substantially benefits from his or hers active engagement in the creation of the last will and testament. Because the person who created the last will and testament has passed away, there is usually no direct evidence to prove whether someone actively procured the last will and testament. To establish active procurement, Florida Courts will look at a number of factors:
(a) presence of the beneficiary at the execution of the will;
(b) presence of the beneficiary on those occasions when the testator expressed a desire to make a will;
(c) recommendation by the beneficiary of an attorney to draw the will;
(d) knowledge of the contents of the will by the beneficiary prior to execution;
(e) giving of instructions on preparation of the will by the beneficiary to the attorney drawing the will;
(f) securing of witnesses to the will by the beneficiary; and
(g) safekeeping of the will by the beneficiary subsequent to execution.
In re Estate of Carpenter, 253 So. 2d 697, 702 (Fla. 1971).
This is not an exclusive list of all the factors a court can look at to determine active procurement. However, these factors are recognized as the basic factors a court will look at to determine active procurement. Further, you need not prove all these factors to prove active procurement, as it will be difficult that in every case each of these factors are present. Id. In Carpenter, the court made it clear that the facts of every case must be looked at individually and the court “expect supplementation by other relevant considerations appearing in subsequent cases.” Id.
In addition to the seven (7) Carpenter factors, there are three other factors which Florida courts have and can considered when determining active procurement:
a) isolating the testator and disparaging family members;
b) mental inequality between the decedent and the beneficiary; and
c) the reasonableness of the will or trust provisions.”
Hathaway, David P., Make it an Even 10: Courts Rely on More than the Server Carpenter Factors to Analyze a Claim for Undue Influence of a Will or Trust, The Florida Bar Journal, Volume 83, No. 6 (June, 2009).
These three factors are not always looked at when determining undue influence, however, if you find that in your case some of these factors are relevant, then it is to your benefit that you make the Florida probate attorney aware of those facts, which may strength your case.