Q: My brother was care taking of my mother for a few years before she died. Shortly before my mother died, she made a new will and left everything to my brother. The will was done by my brother’s attorney. Before the new will, my mother was leaving everything to her 3 children equally. Is there a way to challenge the new will?
A: A last will and testament is supposed to incorporate the wishes of the person creating the will (the testator). When that person’s free will is overcome by fraud, coercion, or undue influence, the will does not reflect the testator’s intent. Under those circumstances, an interest party may challenge the will. If conditions of undue influence are shown, a presumption arises that the will is the product of undue influence, and, by statute the proponent of the will must then prove it was not the result of undue influence. The shifting of the burden of the proof is based upon public policy to prevent abuse of fiduciary or confidential relationships.
In 1971, Florida’s Supreme Court decided the case In re Estate of Carpenter. In the Carpenter case, Mrs. Carpenter signed a will 4 days before she died, leaving everything to her daughter but nothing to her 3 surviving sons. One of the sons challenged the will claiming it was procured by undue influence. The Supreme Court discussed a number of Florida appellate decisions concerning undue influence to distill 7 indicia of undue influence.
The Court explained it is difficult to obtain direct proof of undue influence. Hence, the majority of courts in the United States permit those challenging a will to create a presumption of undue influence by circumstantial evidence. The court went on to discuss circumstantial evidence that created a presumption of undue influence in Florida.
Where a substantial beneficiary was in a confidential relationship with the testator and active in arranging completion of the will, the presumption arises. A trial judge has substantial discretion in determining whether a confidential relationship exists, but the court explains evidence of active assistance in completion of the will would be more objective.
A fiduciary or confidential relationship is a very broad concept. It includes both technical fiduciary relations and informal relations which exist wherever one trusts and relies upon another. The relation need not be legal; it may be moral, social, domestic, or even personal.
In the Carpenter case, the daughter testified the relationship with her mother was very close and that her mother relied upon and depended upon her heavily. The daughter made all arrangements regarding the mother’s hospitalization and requested hospitalization near the daughter’s home rather than near the mother’s home. A number of witnesses testified to a longtime close relationship between daughter and mother. The court found this satisfied the confidential relationship test.
The court went on to address whether the daughter actively procured the will. The court provided a list of 7 factors which Florida courts had considered as evidence of active procurement. Those factors are:
- Presence of the beneficiary when the will is signed
- Presence of the beneficiary when the will Testator expresses a desire to make a will
- The beneficiary recommends an attorney to draft the will
- The beneficiary has knowledge of the will contents prior to signing by the Testator
- The beneficiary gives instructions to the attorney drafting the will
- The beneficiary obtains witnesses for signing the will
- The beneficiary has possession of the will for safe keeping after it is signed.
The court made it clear that the 7 criteria it compiled for consideration in active procurement cases were not exclusive and that courts could consider other relevant factors. The court also noted that it would be a rare case in which all the criteria would be present. The court went on to confirm that once a person a challenging a will shows the criteria are sufficiently met to create a presumption of undue influence, the burden of proof shifts to the proponent of the will to show that it was not the result of undue influence.
Florida’s Supreme Court recognized that its list was not exhaustive. In compiling its list, the court failed to include at least 3 additional criteria that the court itself had considered relevant to the issue of undue influence in previous cases. Those criteria include isolating the testator from those he or she has loved and cared for and attacking that love and confidence by insinuation and accusation. Keeping someone from their family and friends and making disparaging remarks about them is an indication of undue influence.
In another line of cases, mental condition of a testator and superior mental ability of a beneficiary has been deemed pertinent. A third line of cases reviews the reasonableness of a will provisions as an indicator of undue influence. These cases usually involved revocation of will providing equal or relatively equal distribution among beneficiaries and a new will that gives most or all to a single beneficiary. If a rational basis for the change can not be shown, it is considered evidence of undue influence.
A beneficiary procuring a will by undue influence might want to include a clause under which anyone challenging the will is disinherited to protect against that possibility. To protect against that possibility, Florida’s Legislature enacted a statute that makes such clauses unenforceable.
There are deadlines for challenging a will. Missing the deadline can be fatal to your case. This makes it important that anyone challenging a will obtain an experienced attorney immediately. These cases are heavily dependent on the presentation of evidence so proceeding without an attorney would be extremely difficult.