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How to Contest a Will for Undue Influence Florida

What is Undue Influence

A Florida last will and testament can be challenged on the basis of undue influence if an interested person or beneficiary can show that there was “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.” Heasley v. Evans, 104 So. 2d 854, 857 (Fla. 2d DCA 1958). If you believe that a loved one who recently passed away created a Florida last will and testament by force or duress, then you may have a claim against the beneficiary of that last will and testament for undue influence. However, any person looking to bring an undue influence cause of action must be mindful of the complex nature of these type of cases.

For you to bring a claim against someone you suspect unduly influenced the creation of a Florida last will and testament is only the beginning. A Miami probate attorney is needed to navigate the complexity of these cases. If you are able to show enough facts show a presumption of undue influence, it will only raise the presumption and does not necessarily mean that you will ultimately be successful in voiding the last will and testament.

Before continuing, please be aware of some terms that I will be referring to in the article.

The proponent of the last will and testament is the person who is suspected of committing the undue influence. The contestant of the last will and testament is any interested person who challenges the validity of the last will and testament.

Raising Undue Influence in Florida Probate

When dealing with any case involving undue influence, there are three things to keep in mind:  1) you must understand the shifting of the burden of proof in undue influence cases; 2) you must know the elements that are required in order to prove undue influence; and 3) you need to be aware of the type of evidence that is needed in an undue influence case.

Importance of Burden Shifting

Burden shifting can best be described with the illustration of a pendulum. At opposite ends of the pendulum are the contestant (you) and proponent (person you believe to have coerced the person who created the last will and testament) of the last will and testament. Consider the pendulum swinging from one side to the other as the burden of proof. The pendulum will begin moving when you challenge the validity of the last will and testament under the presumption of undue influence.

Here, the proponent must first demonstrate the validity of the last will and testament by showing that the last will and testament was formally executed and attested in accordance with Florida law. Fla. Stat. 733.107.

“[A] properly executed will should be given effect unless it clearly appears that the free use and exercise of the testator’s sound mind in executing his will was in fact prevented by deception, undue influence, or other means.” In re Estate of Carpenter, 253 So. 2d 697, 704 (Fla. 1971). If the proponent demonstrates that the last will and testament was executed properly then the pendulum will swing back to the contestant who will have the burden of raising the presumption of undue influence.

To raise the presumption, a contestant must show that:

  • “a substantial beneficiary under a last will and testament;
  • occupies a confidential relationship with the testator; and
  • is active in procuring the contested last will and testament.”

In re Estate of Carpenter, 253 So. 2d 697, 701 (Fla. 1971).

To satisfy the presumption of undue influence, you must show enough evidence to suggest that the testator was unduly influenced by the proponent of the last will and testament. The fact that you can raise the presumption does not necessarily mean that you have proven that the proponent of the last will and testament unduly influenced the testator. If you are successful, the burden shifts to the proponent of the last will and testament who now must be able to give a reasonable explanation for the actions taken.

Elements of Undue Influence

There is no bright line rule when determining if undue influence has occurred. The Florida Statute makes a small reference with regards to one of the elements of undue influence but does not provide a clear picture of what undue influence is. Fla. Stat. 733.107.  Therefore, probate attorneys and the general public must turn to case law for general guidelines.

As mentioned above, the elements for undue influence are that a person is (1) a substantial beneficiary, (2) who occupied a confidential relationship with the testator, and (3) was active in procuring the will. Each one of these elements must be present for the presumption of undue influence to arise.

Substantial Benefit

The presumption of undue influence can only arise if the influence was exercised by a beneficiary of the last will and testament or on behalf of a beneficiary  by a third party. In re Estate of Carpenter, 253 So. 2d 697, 702 (Fla. 1971); see Carter v. Carter, 526 So. 2d 141, 142 (Fla. 3d DCA 1988).

The beneficiary’s position must improve as a result of the last will and testament. The real question is what is a substantial benefit? The proponent of the last will and testament being named the personal representative, in itself, does not give rise to substantial benefit. Rand v. Giller, 489 So. 2d 796 (Fla. 3d DCA 1986). However, if the proponent is named the personal representative and has broad discretion over the administration of the assets in an estate, then they can be deemed beneficiaries for purpose of determining whether a presumption of undue influence arises.

Like most cases, it will the depend on the facts and circumstances. If a beneficiary receives a 5% interest in an estate which is only valued at $5,000, then that may not be considered a substantial benefit. However, if a beneficiary receives a 5% interest in an estate valued at $100,000,000, then there is a higher change that a court could find that to be a substantial interest. Determining if the beneficiary received an added benefit which he or she did not have previously would be a good starting point for this analysis.

Confidential Relationship

In general, a confidential relationship may arise between parties where both share in a relationship of trust and confidence.

“The term ‘fiduciary or confidential relation,’ is a very broad one. * * * The rule embraces both technical fiduciary relations and those informal relations which exist wherever one man trusts in and relies upon another. * * * The relation and the duties involved in it need not be legal. It may be moral, social, domestic, or merely personal.”In re Estate of Carpenter, 253 So. 2d 697, 701 (Fla. 1971).

It does not matter how the relationship was formed, any person can form a confidential relationship with the testator (person who created the will).

A mere showing of a confidential relationship without any showing of other suspicious circumstances does not amount to undue influence. Levin v. Levin, 60 So. 3d 1116 (Fla. 4th DCA 2011). For example, a close friendship or a family relationship does not necessarily mean that a confidential relationship exists. Coppock v. Carlson, 547 So. 2d 946, 947 (Fla. 3d DCA 1989). However, where there is a close relationship between relatives and trust or confidence can be shown, then this element will likely be met. Blades v. Ward, 475 So. 2d 935, 937 (Fla. 3d DCA 1985).

There is one exception to the confidential relationship element as between spouses. “The confidential relationship which exists between a husband and wife is not one which may be considered in the law governing will contests. [T]he presumption would arise in nearly every case in which the spouse is a substantial beneficiary because the requirement of active procurement would almost always be present.” Jacobs v. Vaillancourt, 634 So. 2d 667, 672 (Fla. 2nd DCA 1994). Generally, spouses are normally each other’s beneficiaries, therefore, a presumption will arise in every case because they would be a substantial beneficiary and are in a confidential relationship.


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.

How can Florida Undue Influence be Proven?

As mentioned above, you must show enough evidence to establish a presumption of undue influence. However, what is enough evidence and what type of evidence will the court consider? The true of the matter is that normally the only evidence of undue influence is circumstantial because it is generally not seen by others.

“[U]ndue 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 is may be inferred.” Gardiner v. Goertner, 149 So. 186 (Fla. 1932). This is why Florida Courts use several factors to determine if undue influence occurred. Cases involving undue influence involve the manipulation of another person over time to acquire a benefit which they did not have, or their benefit substantially increased due to the undue influence. This is normally done behind close doors and away from others.

If you believe that someone may have unduly influence a loved one who has passed away, please feel from to give us a call so that we may help you at (305) 489-1415.


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