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05/31/12 It's The Law: Undue Influence Voids Will


My sister has been hanging around my mother a lot recently. I hear that mom has now changed her will so that my sister gets everything. That does not seem fair. Can I challenge the will?


Florida Statutes provide that a will is void if the execution is procured by fraud, duress, mistake or undue influence. If only part of a will is procured by undue influence, that part is void but the remainder is valid. There is a similar statute applicable to trusts. The statutes basically incorporate common law as confirmed by various Florida cases.

If you want to challenge the will, you will likely be challenging it on the ground that your sister exerted undue influence over your mother which resulted in your sister being the sole beneficiary under her will.

Generally, challenge to a will procured by undue influence must be made after the testator’s death. Allowing challenge prior to the testator’s death might simplify issues of proof concerning undue influence, but would create problems in proving damages and causation. It would be difficult to determine what a testator would own at his or her death, which would be what a beneficiary lost. Only where unique circumstances exist that might interfere with or preclude relief after death of the testator will Florida courts hear these claims earlier.

One example of unique circumstances is Carlton v. Carlton. In the Carlton case, a child allegedly improperly interfered with expectations of other children in their parent’s estate, convincing his parents to execute estate planning documents excluding one of the children from the parents’ estates. Then, the wrongdoer died. The court noted that there was a deadline to pursue a claim against the wrongdoer through his probate which could be missed if a claim could not be pursued until the parents died. I doubt your case would fall within any of the very limited exceptions, so you will likely have to wait to see if mom’s will is as you believe, after mom dies.

The initial burden in challenging mom’s will will be on you. If you can show the trappings of undue influence, the burden will shift to your sister to prove that the will was not the product of undue influence.

Merely because a parent chooses to make unequal gifts to his or her children is not enough to establish undue influence. The leading Florida case in this area is Carpenter v. Carpenter.

In Carpenter, a mother left her entire estate to her daughter through a will executed four days before mom died. Two of her three surviving sons contested probate of the will on the ground that it was a product of undue influence. The court explained that undue influence generally requires active procurement in a fiduciary or a confidential relationship.

A fiduciary or confidential relationship is a broad concept. It need not be based on law, such as the relationship between an attorney and client. It can be moral, social, domestic or merely personal. A close relationship between parent and child certainly qualifies.

Active procurement involves consideration of various factors. Florida cases have considered several criteria in determining active procurement, including:

  • Presence of the beneficiary at the time the will is signed;
  • Presence of the beneficiary on occasions when the testator expressed the desire to make a will;
  • Recommendation by the beneficiary of the attorney to draft the will;
  • The beneficiary’s knowledge of the will contents prior to it being signed;
  • The beneficiary instructing the attorney in how to prepare the will;
  • The beneficiary providing witnesses at time of signature; and
  • The beneficiary holding the will for safekeeping.

When both confidential relationship and active procurement are present, the inquiry is not ended. It must still be shown that the influence was undue. That means, the will was a result of the testator’s mind being so controlled or affected by persuasion, pressure, fraud or other insidious influence that the testator was not able to act voluntarily, but instead, was subject to the will of another.

Where one child of a testator is left a disproportionately large portion of the testator’s estate and that child was in both a confidential relationship and actively procured the will, a strong case is established

Will challenges are fact intensive. Success requires shedding light on all of the circumstances surrounding the preparation and execution of a will, which can be difficult and expensive. In these cases, representation by a good attorney is essential.

By: William G. Morris, Esquire

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