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What Exactly Is “Undue Influence,” And How Can I Avoid It When Making My Will?


The phrase “undue influence” is often used when discussing contested probate estates. The basic idea is that a will (or trust) should be considered invalid because some person engaged in improper action to procure the document in question. For example, let’s say Emily has three adult children. One of these children, Scott, cares for Emily, who is elderly and no longer capable of living on her own.

Scott isolates Emily from the rest of the family, including his siblings. Scott also “suggests” that Emily make a will leaving him her entire estate. Scott then hires an estate planning attorney to draft a will to that effect. Emily does sign the will, but she appears confused and does not even bother to read the document beforehand.

After Emily dies, her other children challenge the probate of the will on the grounds that Scott exercised “undue influence” over their mother.

A “Rebuttable Assumption” of Undue Influence

In 1971, the Florida Supreme Court spelled out the process for handling these types of claims in a case called In re Estate of Carpenter. The Court’s central holding was that probate courts should apply a “rebuttable presumption” that there was undue influence in procuring a will if the following conditions were met:

  • A “substantial beneficiary” under the will occupied a “confidential relationship” with the testator, i.e., the person who executed the will.
  • The substantial beneficiary was “active in procuring the contested will.”

The hypothetical scenario described above meets both of these conditions. So a Florida probate court would then start with the presumption that Scott exercised undue influence to procure Emily’s will. The law then shifts the burden to Scott to prove that he did not exercise any undue influence.

Identifying the Signs of Possible Undue Influence

It is important to understand that undue influence may come not only come from family members of the testator. Indeed, many undue influence cases involve non-relatives who were nevertheless in a confidential relationship with the deceased, such as a caretaker or close friend. Proving the existence of a confidential relationship is actually not that difficult. What is often more crucial to an undue influence analysis is whether the beneficiary took an active role in procuring the will.

Some of the criteria a court will look at with respect to this issue include:

  • whether the beneficiary was present when the will was signed;
  • whether the beneficiary recommended or instructed the estate planning attorney who prepared the will;
  • whether the beneficiary knew of the will’s contents beforehand; and
  • whether the beneficiary kept the original will for “safekeeping” after it was signed.

In short, if you want to avoid even the appearance of undue influence when making a will–especially if you decide to omit or treat certain family members less favorably than others–it is important that you take charge of your own affairs while you are still able. The first step is working with a qualified St. Petersburg estate planning lawyer who can advise and guide you through the process of properly executing a will. Contact Legacy Protection Lawyers, LLP, to schedule a consultation today.



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