In Blinn_v._Carlman, (4th DCA 2015) the Fourth District Court of Appeal upheld a Florida probate court’s invalidation of a will based upon undue influence by a surviving spouse. Overturning a will on the grounds of undue influence by a surviving spouse is challenging, and this case gives insight into the kind of facts that support a finding of undue influence, and the standard the Florida appellate court uses to review the Florida probate court’s decision.
The Law Regarding Undue Influence
The law regarding undue influence was summarized by the Florida appellate court as follows:
“When a will is challenged on the grounds of undue influence, the influence must amount to 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.” Levin v. Levin, 60 So. 3d 1116, 1118 (Fla. 4th DCA 2011) (quoting Raimi v. Furlong, 702 So. 2d 1273, 1287 (Fla. 3d DCA 1997)). The doctrine of undue influence is based on the theory that the “testator is induced by various means, to execute an instrument which, although his, in outward form, is in reality not his will, but the will of another person which is substituted for that of testator.” In re Winslow’s Estate, 147 So. 2d 613, 617 (Fla. 2d DCA 1962) (citation omitted).
“Undue 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 it may be inferred.” Gardiner v. Goertner, 149 So. 186, 190 (Fla. 1932) (citation omitted).
A presumption of undue influence arises when the undue influencer: (1) occupies a confidential relationship with the decedent; (2) is a substantial beneficiary under the will; and (3) was active in procuring the will. The Florida Supreme Court has established a set of non-exhaustive factors (known as the Carpenter factors) for courts to consider on the issue of undue influence or active procurement:
- (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.
Estate of Carpenter, 253 So. 2d 697, 702 (Fla. 1971).
However, in the case of undue influence by a surviving spouse, there no presumption of undue influence can arise. The rationale has been summarized as follows:
A husband and wife naturally have influence on each other, but it cannot be considered undue influence. The law recognizes the special role of husband and wife. The confidential relationship which exists between a husband and wife is not one which may be considered in the law governing will contests. Tarsagian v. Watt, 402 So. 2d 471 (Fla. 3d DCA 1981). Since a confidential relationship is one necessary requirement which must be met before a presumption of undue influence arises, the presumption cannot arise in the case of a husband and wife. If the confidential relationship between spouses is not exempted from the presumption of undue influence rule, the 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 (Fla. 2d DCA 1994). Therefore, it is more difficult to prevail in an undue influence challenge against a surviving spouse, because the petitioner does not get the benefit of the presumption.
The Facts Supporting a Finding Of Undue Influence By The Surviving Spouse
The facts in this case were strong. In 2007, appellant Demetra Blinn married Richard Blinn when he was 82 years old. From 2006 on, Richard suffered from progressive dementia. The evidence showed that Richard’s behavior was inappropriate, he made imprudent financial decisions, his business was failing because of his deteriorating condition, and he sent money to mail-away scams. In June 2011 Richard was found totally incapacitated. His daughter, appellee Patty Carlman, was appointed as his guardian.
Patty sought to invalidate Decedent’s April 2, 2008 will. The April 2008 will left everything to Demetra. The prior wills left everything to Patty, including a will that was executed eight months after Richard met Demetra.
Suspicious Circumstances Surrounding the Execution of the Will
The appellate court noted that the April 2008 Will was executed “under most suspicious circumstances.” Two lawyers, a referring lawyer and a drafting lawyer, were involved. The testimony of the lawyers sharply conflicted regarding the preparation of the 2008 will. As the appellate court stated:
If both lawyers are to be believed, Richard’s April 2008 will drafted itself and miraculously appeared at the drafting lawyer’s office on April 2.
Not Credible Testimony From the Surviving Spouse
Demetra professed no knowledge of the appointment with the drafting lawyer until the morning the will was executed, despite the fact that the drafting lawyer had obtained a copy of Demetra’s earlier will and trust. Demetra provided the drafting lawyer two “doctor letters” stating that both Demetra and Richard were of sound mind. The “doctor letters” had been written nine months before the execution of the 2008 will. The appellate court stated that:
This conduct suggests that, on her own, appellant was trying to overcome legitimate concerns about the circumstances surrounding the April, 2008 will.
Alienation From Family
In addition, the Florida probate court found that both before and after the marriage Demetra alienated Richard from his family. Evidence showed that Demetra aggressively pushed the idea onto Richard that his daughter Patty was stealing from him, without any evidence of Patty’s wrongdoing. Indeed, evidence was presented of a voice message accidentally left by Demetra, where Demetra was screaming at Decedent about how Patty was stealing from Richard.
Additional Evidence Of Surviving Spouse’s Financial Motivations
Additional evidence showed that Demetra requested beneficiary changes on life insurance, and directly contacted the drafting attorney’s law firm to send her Richard’s estate planning documents and a durable power of attorney in her favor.
The Florida probate court found that if appellant “were so bold as to openly display such influence over [the decedent], then the court could ‘reasonably infer that similar or greater influence was occurring in the dark during their marriage’ and that decedent was “susceptible to undue influence due to his declining physical state, anxiety disorders depression, and progressive dementia.”
The Florida probate court’s “findings in a will contest shall not be overturned where there is substantial competent evidence to support those findings, unless the probate judge has misapprehended the evidence as a whole.” The Florida appellate court found that the final judgment invalidating the will was supported by substantial competent evidence and affirmed the judgment.