Florida Estate Planning by Leesha Newkirk-Crouch: Case Law - Undue Influence

"Highly litigated in Florida, undue Influence has two indicators 1) whether there is the presence of a confidential relationship and 2) whether there was an active procurement of a will.

• “It is established in Florida that if 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 influence arises.” In re Estate Carpenter. 253 So. 2d 697, 701 (Fla. 1971). 
• Although it includes a very broad range of activities, a confidential or fiduciary relationship is said to exist when a person significantly relies upon and places trust in another. Id.
• Carpenter further clarifies that, “the relation and duties involved in it need not be legal. It may be moral, social, domestic or merely personal.” Id. at 701. The nature of this relationship provides the opportunity for undue influences to occur. 

Carpenter explains seven factors of active procurement (this list is not exahaustive):

                        (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 the 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.

“Undue influence comprehends overpersuasion, coercion, or force that destroys or hampers the free agency and will power of the testator.” Newman v. Smith, 77 Fla. 633, 667 and 668, 82 So. 236, 246 (1918).

• In Re Estate of Carpenter, 253 So. 2d 697 (Fla. 1971)

  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 re Estate of Lamberson, 407 So. 2d 358 (Fla. Dist. Ct. App. 5d Dist. 1981)

           "the sole beneficiary of the decedent's will was also a       caretaker. The caretaker was found to be in a confidential             relationship with the decedent, since she was entrusted with       financial responsibilities and held power of atty and             guardianship over the Lambersons. Court held undue influence       was exercised by caretaker and will was deemed            invalid.

• In re Estate of Van Aken, 281 So. 2d 917 (Fla. Dist. Ct. App. 2d Dist. 1973)

  The exclusion of family members in a will, in favor of friends or caretakers is also indicative of undue influence.
  Court held that the will was invalid.

• Undue Influence Defined in Florida--RBC Ministeries v. Tompkins, 974 So. 2d 569 (Fla. 2d DCA 2008)

  Undue Influence comprehends overpersuasion, coercion, or force that destroys or hampers the free agency and will power of the testator.

• Proving Undue Influence--Carter v. Carter, 526 So. 2d 141 (Fla. 3d DCA 1988)

  To prove undue influence in the procurement of a will, the will contestant MUST show that the respondent: (1) occupied a confidential relationship with the testator, (2) was a substantial beneficiary under the will, and (3) was active in procuring the will.

• Conduct of Person Acting in UnDue Influence--Coppock v. Carlson, 547 So. 2d 946 (Fla. 3d DCA 1989)

  The conduct of the person allegedly exercising undue influence MUST BE of such a degree that the conduct overrides the testator's discretion and destroys his free will.

There are instances where friendships, consisting of a confidential relationship, do NOT conclusively indicate undue influence.

• Williamson v. Kirby, 379 So. 2d 693 (Fla. Dist. Ct. App. 2d Dist. 1980)

  The beneficiary was a neighbor and close, long-time friend of the decedent. The court held that the beneficiary adequately explained her involvement in the will and ultimately affirmed the validity of the will.
  The case held that undue influence, "must amount to over persuasion, duress, force, coercion or artful or fraudulent contrivances to such a degree that there is destruction of the free agency and will power of the one making the will." Id at 697."