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Certain individuals use undue influence to obtain gifts or a large inheritance from persons who are elderly, sick or weak. These undue influencers may exploit weaknesses of the sick and elderly to persuade, convince, pressure or even coerce an elderly person to revoke his or her previous Will or estate plan, and execute a new testamentary instrument to which the undue influencer is a substantial beneficiary. Of consequence, the new testamentary instrument may have the effect of disinheriting family members for whom the elderly person intended to provide.

Fortunately, Florida law provides recourse for those family members and heirs who were disinherited by a Will procured by undue influence. Under Florida law, a person contesting a Will for undue influence establishes a presumption of undue influence by showing: (1) that the undue influencer was a substantial beneficiary under the Will; (2) that the undue influencer occupied a confidential relationship with the testator (the person who executed the Will); and (3) that the undue influencer was active in procuring the contested will.

Substantial Beneficiary

In order to determine whether an undue influencer is a “substantial beneficiary,” the Florida Courts will examine whether the undue influencer stands to inherit a substantially larger portion of the Estate under the contested Will than s/he would have received under previously executed Wills. In certain circumstances, the Florida Courts have recognized that an undue influencer may not actually be a substantial beneficiary under the contested Will, but committed undue influence on behalf of somebody else who is a substantial beneficiary. For example, a Florida Court voided a gift for undue influence where the rector of a church committed undue influence in obtaining a substantial gift for his diocese.

Confidential Relationship

For purposes of establishing undue influence in Florida, a confidential relationship may be fiduciary, but may also be a family relationship, a household relationship, and the relationship of a business adviser. One Florida Court describes “confidential relationship” as a “legal concept operating within a broad sphere of factual situations.”

Active Procurement

The last step in establishing a presumption of undue influence is to show that the undue influencer actively procured the contested Will. In re Carpenter’s Estate is a landmark Florida case on this issue, and lists the criteria used to establish active procurement: (1) the presence of the undue influencer at the signing of the Will; (2) the presence of the undue influencer on occasions when the testator expressed a desire to make a Will; (3) recommendation by the undue influencer of an attorney to draw the Will; (4) knowledge of the contents of the Will by the undue influencer prior to the signing of the Will; (5) giving of instructions on preparation of the Will by the undue influencer to the attorney drawing the Will; (6) securing the witnesses to the Will by the undue influencer; and (7) safekeeping of the Will by the undue influencer after it was executed.

Once a person contesting a Will for undue influence establishes the three requirements described above, the burden shifts to the undue influencer to prove that the Will was executed by the elderly person’s own free will and that no undue influence took place.