Will Contests Under Carpenter: Building Bigger and Better

Will contests in Florida are conducted pursuant to a Florida Supreme Court case known as In re Estate of Carpenter, 253 So. 2d 697 (Fla. 1971), which gives a list of what are termed the “Carpenter factors” for determining whether or not there has been active procurement of a will and therefore undue influence.  A recent Florida undue influence case, Swiss v. Flanagan, 329 So.3d 199 (3rd DCA 2021) makes clear that many factors can be considered in determining whether or not there has been undue influence, not just those factors set forth in the Carpenter case.  The Swiss case begins by explaining the state of the law in Florida on undue influence.

Under Florida law, “[a] will is void if the execution is procured by … undue influence.” § 732.5165, Fla. Stat. (2021). The burden of establishing undue influence lies with the party seeking to invalidate the will. See § 733.107, Fla. Stat. As this court has previously explained, to constitute 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.” Raimi v. Furlong, 702 So. 2d 1273, 1287 (Fla. 3d DCA 1997).

In the Carpenter case, the Florida Supreme Court determined that a rebuttable presumption of undue influence can arise where a substantial beneficiary, occupying a confidential relationship with the testator, is shown to have actively procured the will. 253 So. 2d at 701. The court advanced several criteria to consider in determining whether active procurement exists. These criteria include: (a) whether the beneficiary was present at the execution of the will; (b) whether the beneficiary was present when the testator expressed a desire to make a will; (c) whether the beneficiary recommended an attorney to draft the will; (d) whether the beneficiary knew of the contents of the will prior to execution; (e) whether the beneficiary gave instructions on preparation of the will to the attorney; (f) whether the beneficiary secured witnesses to the will; and (g) whether the beneficiary possessed the will subsequent to execution. Id. at 702.

Where such a presumption arises, the burden then shifts to the beneficiary to come forward with a reasonable explanation as to his or her active role in the affairs of the testator. Id. at 704. Once that burden is met, the presumption vanishes, and the trial court decides the case in accord with the greater weight of the evidence. Id.

The Swiss case then explains that more factors can be considered beyond just those set forth in the Carpenter case.

Further, as has been observed by multiple courts, the Carpenter criteria are not exclusive. Instead, courts “may expect supplementation by other relevant considerations appearing in subsequent cases.” Id.; see also In re Est. of Winslow v. Patterson, 147 So. 2d 613, 616 (Fla. 2d DCA 1962) (considering the insulation of the testator from her relatives and efforts to prejudice her against them); Newman v. Smith, 77 Fla. 633, 82 So. 236, 246 (1918) (considering the reasonableness of the will provisions). In this regard, courts have routinely considered the mental and physical health inequalities between the testator and beneficiary at the time the will is executed. See In re Estate of Reid, 138 So. 2d 342, 349 (Fla. 3d DCA 1962), overruled in part on other grounds, Carpenter, 253 So. 2d 697 (Fla. 1971) ; Cripe v. Atl. First Nat’l Bank of Daytona Beach, 422 So. 2d 820, 824 (Fla. 1982) (“Where there is such inequality of mental strength, active procurement can be shown by evidence … of a request or suggestion by the dominant party.”).
Swiss v. Flanagan, 329 So.3d 199 (Fla. App. 2021).

Finally, the Swiss case applies those additional factors to the facts of the case before it.

As relevant here, it can scarcely be the subject of debate that in the months preceding the execution of the disputed will, the testator was in declining health. Indeed, his frailties were sufficiently concerning to warrant a request for competency evaluations by his long-serving estate planning attorney. Further, by the time the will was drafted and executed, Swiss, who was able-bodied and mentally firm, had assumed control over the testator’s finances and other aspects of his personal affairs, restricted lines of communication with his children, and disclosed his financial holdings to others. Perhaps of equal import, as astutely noted by the trial court, “[t]he circumstances [of the will] are highly suspicious, including the absence of a documented attorney’s file for the estate preparation … the clear involvement of … Swiss in contacting the lawyer and arranging the meeting, [and] the errors in the will and affidavit.” The preparing attorney was unable to recount the time, place, and manner of signature of the will, and his record was devoid of standard documentation, including invoices, drafts, correspondence, and the like. Further, prior will drafts reflected Swiss was to take no active role in administration, but in the disputed will, she was nominated personal representative.

We conclude these circumstances, coupled with the provisions of the will, were more than sufficient to give rise to a rebuttable presumption of undue influence. See In re Burton’s Est., 45 So. 2d 873, 875 (Fla. 1950) (quoting Gardiner v. Goertner, 110 Fla. 377, 149 So. 186, 190 (1932) ) (“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.”); Steven G. Nilsson, Florida’s New Statutory Presumption of Undue Influence: Does It Change the Law or Merely Clarify?, 77 Fla. B.J. 20, 24 (2003) (“Undue influence is rarely susceptible of direct proof because of secret or private dealings between the decedent and the alleged wrongdoer; the latter typically testifies that he did nothing wrong, and the decedent never testifies to the contrary.”).

Jeffrey Skatoff is a Florida probate attorney.  To have Mr. Skatoff review your case free of charge, please go to his website.

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