In Florida probate the most common challenge to the validity of a will is for undue influence. If all or a portion of a will is proven to be the product of undue influence, the whole will or the portion that was procured through undue influence can be set aside in favor of a prior will or intestacy.
There are a number of cases in Florida probate where wills or trusts have been set aside as the product of undue influence. Relevant excerpts from two such undue influence cases in Florida probate are presented.
Raimi v. Furlong
The first undue influence case is Raimi v. Furlong, 702 So. 2d 1273 (3rd DCA 1997).
The lower court additionally found that “The Barash Will and Amended Trust” was void because it was procured by “undue influence and overreaching by Manny in violation of a confidential or fiduciary relationship.” 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. See In re Carpenter’s Estate, 253 So. 2d 697, 704 (Fla. 1971); Dunson, 141 So. 2d at 605; see also Estate of Brock, 692 So. 2d 907, 911 (Fla. 1st DCA 1996), rev. denied, 694 So. 2d 737 (Fla. 1997). A presumption of undue influencearises in favor of a will contestant if it is established that a substantial beneficiary under the will occupied a confidential relationship with the testator and was active in procuring the contested will. See Carpenter, 253 So. 2d at 701; Brock, 692 So. 2d at 911; Elson v. Vargas, 520 So. 2d 76, 76 (Fla. 3d DCA), rev. denied, 528 So. 2d 1181 (Fla. 1988). The origin of the confidence between the benefactor and testator is immaterial and the confidential relationship is broadly defined:
The rule embraces both technical fiduciary relations and those informal relations which exist wherever one man trusts in and relies upon another.
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The relation and the duties involved in it need not be legal. It may be moral, social, domestic, or merely personal. Carpenter, 253 So. 2d at 701 (citing Quinn v. Phipps, 113 So. 419, 421, 93 Fla. 805, 810 (1927)). As for a determination of whether a substantial beneficiary was active in the procurement of the will, our supreme court in Carpenter outlined the following non-exclusive list of factors for the court’s consideration:
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.
253 So. 2d at 702.
These listed criteria are only general guidelines and a will contestant is not required to prove them all to establish active procurement. See Id. Each case is fact specific and the significance of any (or all) of such criteria must be determined with reference to the particular facts of the case.
Once the presumption of undue influence arises, the burden shifts to the beneficiary of the will to come forward with a reasonable explanation of his or her active role in the preparation of the decedent’s will. See Brock, 692 So. 2d at 912. If the presumption goes unrebutted, it alone is sufficient to sustain the contestant’s burden. See Id. On the other hand, if the presumption is rebutted, the contestant must establish undue influence by a preponderance of the evidence. See Tarsagian v. Watt, 402 So. 2d 471, 472 (Fla. 3d DCA 1981).
With reference to “The Barash Will and Amended Trust,” the lower court found that a presumption of undue influence was created by virtue of Manny’s: 1) role in finding Mr. Barash; 2) role in procuring “The Barash Will and Amended Trust”; and 3) control of the decedent’s personal and financial affairs. 13 The court further found that the presumption had not been rebutted by a reasonable explanation for Manny’s acts and conduct. Alternatively, the lower court found that even in the absence of the presumption, Manny’s undue influence had been proven by the greater weight of substantial and competent evidence. We do not agree that the evidence supports either of the lower courts’ alternative conclusions.
RBC Ministries v. Tompkins
The second Florida probate undue influence case is RBC Ministries v. Tompkins, 974 So. 2d 569 2nd DCA 2008).
[I]f a substantial beneficiary under a will occupies a confidential relationship with the testator and is active in procuring the contested will, the presumption of undue influencearises.” Carpenter v. Carpenter (In re Estate of Carpenter), 253 So. 2d 697, 701 (Fla. 1971).The supreme court has provided the following nonexclusive list of criteria which are relevant to determining whether a beneficiary has been active in procuring a will:
(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.
Carpenter, 253 So. 2d at 702.
Will contestants are not “required to prove all the listed criteria to show active procurement.” Id. Indeed, “it will be the rare case in which all the criteria will be present.” Id.
On the active procurement issue, the record before the trial court shows the following facts: Tompkins was present at the execution of the will. She was present when the decedent expressed a desire to make a will. She did not recommend an attorney to draft the will, but she herself drafted the will on her home computer. Because she drafted the will, she was aware of the contents of the will before it was executed. Tompkins secured the witnesses to the will, but the witnesses were neutral parties. Finally, Tompkins had possession of the will after its execution.
Accordingly, the circumstances identified in Carpenter’s criteria (a), (b), (d), (f), and (g) are all present here. Circumstances similar to–but, in fact, more egregious than–the circumstances identified in criteria (c) and (e) are also present here. In view of these facts, there is no basis for concluding that Tompkins established beyond dispute that she was not active in procuring the contested will. Given Tompkins’ conceded status as a substantial beneficiary under the will, her admitted confidential relationship with the decedent, and her failure to show beyond dispute that she was not active in procuring the will, Tompkins did not establish that the presumption of undue influence had not arisen. See id. at 702 (holding that “at least four of the factors” regarding active procurement were “sufficient to raise the presumption of undue influence” where the beneficiary was a substantial beneficiary who had a confidential relationship with the decedent).
The Common Themes of Undue Influence in Florida Probate
Although the facts of each undue influence case vary, the same themes reoccur. There is a mentally weakened elderly person, a predatory individual takes advantage of the situation by inserting himself or herself into the estate planning process. Although every one of the Carpenter factors need not always be present, typically a number of such factors will be present so that the court can conclude that the new estate plan would not have been created but for the involvement of the undue influencer.
What Are The Presumptions and Burden of Proof In Florida Undue Influence Cases?
Florida law makes use of a series of presumptions in controlling the outcome of undue influence cases in Florida probate.
In Estate of Madrigal (3rd DCA 2009), the appellate court affirmed the trial court’s revocation of a will as a result of undue influence, basing its holding on the presumptions that apply in undue influence cases:
[W]here the proponent of a will satisfies, prima facie, the will is facially proper, and the contestant thereafter satisfies, prima facie, a presumption of undue influence in the making of the will, the proponent of the will has the burden of proving the will was not the product of undue influence. That burden must be met by a preponderance of the evidence as determined by the trier of fact.
The presumption of undue influence arises under Florida law where “a substantial beneficiary under a will occupies a confidential relationship with the testator and is active in procuring the contested will.” In Estate of Carpenter, 253 So.2d 697 (Fla. 1971).
Once the trial court determines that a beneficiary was active in the procurement of a will and had a close, trusting relationship with the testator, that beneficiary bears the burden of proof to show that the will was not the product of undue influence.