A will allows a person to determine what happens to his property after he passes away. Unfortunately, unscrupulous people sometimes intimidate or confuse a vulnerable person to create or alter estate documents. Under Florida law, this is known as “undue influence.”
Often, family members don’t know about the influence or the new estate documents until after the testator or grantor passes away. Then, they may be confronted with a will that doesn’t reflect what the deceased would have wanted at all.
How Does Undue Influence Happen?
Undue influence typically occurs when a person is vulnerable in some way. That may mean fading mental faculties, isolation, or physical dependence on a specific individual. Under those circumstances, it can be easy for a caregiver or other close friend or family member to manipulate the vulnerable person to achieve his or her own goals. This manipulation may be limited to the terms of the will, or may be part of a pattern of financial elder abuse by the influencing party.
In Florida, interested parties who suspect undue influence can contest the will, and a will found to be the result of undue influence can be set aside by the court. But will contest litigation, including undue influence claims, can be time-consuming and costly.
A better understanding of what constitutes undue influence and how undue influence litigation works will help you and your family members make a more informed decision about whether and how to contest a will when you suspect undue influence.
Undue Influence Litigation
Common signals that may trigger a will contest on the grounds of undue influence include:
- Unexpected and seemingly unreasonable terms of the will, such as leaving out close family members with no explanation
- Vulnerability or diminished capacity of the testator, such as illness or declining mental faculties
- The testator having been dependent on the person believed to have exerted undue influence (for example, an elderly person in failing health living with and dependent for care on a single relative)
However, proving undue influence can be difficult. On the surface, the relationship between a victim of undue influence and the perpetrator may look very much like the relationship between an ailing older person and a devoted friend or family member.
The Florida Supreme Court has set forth specific factors to be considered in determining whether someone “actively procured” the creation of or change in the terms of a will. These factors are commonly known as “Carpenter factors,” after the name of the case in which they were established.
The Carpenter Factors
In considering whether the terms of a will are the product of undue influence, the court will consider these seven factors, each of which may point to active procurement of the document:
- Was the beneficiary accused of undue influence present when the will was signed?
- Was the beneficiary accused of asserting undue influence present when the testator expressed a desire to make a will?
- Did the beneficiary recommend an attorney to draft the will?
- Was the beneficiary aware of the contents of the will prior to execution?
- Did the beneficiary provide instruction on preparation of the will to the attorney drafting the will?
- Did the beneficiary play a role in securing witnesses for the will?
- Did the beneficiary “safe-keep” the will after execution?
These questions are designed to determine the degree of involvement the beneficiary had in the creation and execution of the will.
Pursuing a Claim of Undue Influence
An undue influence claim can be difficult to establish, and equally difficult to defend against. A will contest takes place after the testator’s death, so the one person with the most detailed knowledge of both events and intent is unavailable to testify or provide other evidence. In a case involving a caretaker or other person, most of the interactions between the testator and the accused likely occurred in private.
If you are considering pursuing undue influence litigation, or have been accused of exerting undue influence, the knowledgeable guidance of an experienced estate litigation attorney can be your most powerful tool.
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