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Will Contests Based on Undue Influence: The Shifting Burden of Proof

In 2005, the Florida legislature amended Section 733.107 of the Florida Statutes significantly changing the burden of proof in a contest of a will  based on a claim of undue influence. This article will discuss the law of undue influence and how this statute, and the relevant case law, impacts a will contest. 

The law generally provides that one's last will and testament is to be held valid wherever possible and the court should strive to carry out the true wishes and intentions of the testator, however, if a testator (the one making the will) lacks “testamentary capacity,” (discussed in another article) or if the will is procured by “undue influence,” the will (or trust or gift) may be set aside. 

Section 733.107(1) of the Florida Statutes provides that in a proceeding contesting the validity of a will, the burden is first upon the proponent of the will (usually the personal representative of the estate) to establish that it was properly executed and attested to.  In general, Florida law provides that the testator sign the will, and that the will be witnessed by two witnesses who attest that they witnessed the testator sign the will.  The witnesses must sign the will in the presence of the testator and in the presence of each other. If these "will formalities" are not followed, then the will can be held invalid and of no effect. 

Once the proponent establishes that the will was properly executed and attested to, then the person seeking to overturn the will (the “contestant”) has the burden of proving the grounds supporting revocation of the will, such as proof that the will was procured by undue influence. 

Florida Statutes, Section 732.5165 provides that a will, or any part of it, is void if procured by fraud, duress, undue influence or mistake. To prove undue influence, the contestant must show that the testator’s mind was so controlled by persuasion, pressure, and outside influences that he did not act voluntarily but was subject to the will of another when the execution took place. Stated another way, the influence, to be of such a degree to be considered “undue,” must be so strong that the will of the dominant party is substituted for that of the victim.

A presumption of undue influence arises upon a showing by the contestant that the party alleged to be the influencer: 1) occupied a "confidential relationship" with the testator; 2) was a substantial beneficiary under the will; and 3) was active in procuring the will.  The most significant and contested of these elements is “active procurement.” Active procurement of a will may be shown if a number of factors are present.  This nonexclusive list of factors is referred to as the “Carpenter factors” after the Florida Supreme Court case of the same name. These factors are: 

1) the presence of the beneficiary at the execution of the will; 

2) the presence of the beneficiary on those occasions where the testator expressed the desire to make a will;

3) recommendation by the beneficiary of an attorney to draw the will; 

4) knowledge of the contents of the will by the beneficiary prior to execution; 

5) the giving of instructions on preparation of the will by the beneficiary to the attorney preparing the will;

6) securing the witnesses of the will by the beneficiary; and 

7) safekeeping of the will by the beneficiary subsequent to its execution. 

If a number of these factors are present, the presumption that the will was procured by undue influence may arise. 

While it creates presumption of undue influence, active procurement, standing alone, is insufficient to prove the existence of undue influence. That is, if a beneficiary was active in procuring the will it does not necessarily prove that the will does not reflect the testator's actual wishes or is a product of improper influence by another. Improper influence can be very difficult to prove and there is seldom direct proof of undue influence - the influence is rarely exercised in the presence of others. Consequently, undue influence must be shown by circumstantial evidence, such as the testator’s susceptibility to influence, the testator’s relationship with the beneficiary, and the testator’s isolation from other family members.  The court may also consider the nature of the bequest, such as whether the will is a drastic change from a prior plan, and whether the bequest is unreasonable, unjust, or provides for unequal or disproportionate distributions.  The presence of any one factor will not result in a finding of undue influence. Rather, the court must decide whether all the factors, when considered together, justify setting aside the will.

Prior to the amendment of Section 733.107, if the contestant showed that the beneficiary occupied a confidential relationship and was active in procuring the will, then the beneficiary needed merely to come forward with a reasonable explanation of his or her active role in procuring the will. If the beneficiary could provide a reasonable explanation, the contestant then had to prove the elements of undue influence. 

With the amendment of Section 733.107, if the beneficiary is shown to have occupied a confidential relationship with the testator and was active in procuring the will, then the burden is on the beneficiary to show that the will was not procured by undue influence.  Just as it can be very difficult to show that the will was procured by undue influence, it can likewise be very difficult to disprove undue influence.  Essentially the beneficiary must prove a negative and present proof showing that the testator was not under his or her influence, and the will reflects the testator's true, independent wishes. 

If a court determines that a will was a product of undue influence, then the will is set aside and is of no effect.  Typically the court would then turn to the prior will and its terms for the distribution of the testator’s estate, unless it is determined that will too was a product of undue influence.  As an example, assume that the testator executed a will in 2003 leaving his estate in equal shares to his two adult children, then removed one child (say a daughter) in a will executed in 2006, and executed another will in 2009 which also provided for no bequest to the daughter.  If the daughter later brought a will challenge after her parent’s death in 2010, then she would have to contest both the 2009 will AND the 2006 will in order to get back to the 2003 will under which she would share in the estate. 

A testator wishing to make a will should carefully consider and avoid these Carpenter factors, especially where there is a concern that there may be an ultimate challenge to the will. When at all possible, the testator, not the intended beneficiary, should select the attorney to prepare the will.  Even if it is necessary for the beneficiary to drive the testator to the attorney’s office, the beneficiary should not be present when the testator discusses the making of the will with the attorney or when the testator executes the will.  Likewise, the beneficiary should not dictate or even discuss the terms of the will with the attorney prior to its execution.  The testator should expect the attorney to furnish witnesses for the execution of the will and, in most instances, should allow the attorney to retain the original will for safe keeping.

The law provides for a very short window of time to bring an action to contest a will subsequent to a testator’s passing.  This time can be as short as twenty days after service of “formal notice.”  Therefore, if one suspects that a will being probated was procured by undue influence or that the testator lacked the requisite capacity to make the will, he or she should contact an attorney immediately. 

John W. Chapman, Jr. is the principal of the John Chapman Law Firm, P.A. located in Sarasota, Florida. He is board certified as a specialist in business litigation by the Florida Bar and practices primarily in the areas of construction, commercial, probate/trust and ad valorem tax litigation. Mr. Chapman is admitted to practice in all Florida state courts, the United States District Courts for the Middle and the Southern Districts of Florida, and the United States Court of Appeals, Eleventh Circuit. He offers representation in probate and trust disputes of all kinds, including will contests, estate disputes, contested guardianships and actions for removal of fiduciaries. 

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