Skip to Content

Probate Litigation | How To Prove Undue Influence


The burden of proof required for undue influence cases is more complex than meets the eye. A qualified and experienced Florida Undue Influence lawyer for probate matters and a Florida Trust Litigation Attorney for Trust matters may be needed. It is not an issue of simply making an accusation or having a “hunch” that a testator or settlor was a victim of undue influence.  Even if there is sufficient evidence to support that there was susceptibility, opportunity, and disposition of the assets are present, it may still reflect the testator’s intent and/or free will.

In Florida, the burden of proof lies in the hands of the petitioner unless the beneficiary was acting in a fiduciary capacity or in a confidential relationship with the testator or settlor.


An individual in a fiduciary capacity or confidential relationship with the testator or settlor is held to higher standard. Undue influence that is presumptive occurs when a fiduciary relationship exists between the testator or settlor and the individual alleged of exerting undue influence.  Prior to 2002, the burden of proof was the responsibility of the Petitioner. Carpenter v. Carpenter, 253 So. 2d 697 (Fla. 1971).

As of 2002, the burden of proof regarding presumption of undue influence shifts to the respondent. See § 733.107(2), Fla. Stat. (2013) and §§ 90.301-90.304. As a result, this means that the alleged wrongdoer bears the responsibility of proving that there was no undue influence utilized in drafting of the will or the trust.

In the 2004, the impact of Carpenter remained as the determining factor in defining presumption of undue influence. See Hack v. Janes, 878 So.2d 440,443 (Fla. 5th DCA 2004). To learn more about the history of presumption of undue influence review my blog on Carpenter.

If you feel that a loved-one or an individual may be a victim of undue influence as described above, you may contact Florida Probate Litigation Attorney Thomas Upchurch at (386) 272-7445 to discuss the matter.


Courts usually use one or more of the following approaches to determine whether there was undue influence in will contest or trust contest cases:

1)    use the preponderance of evidence standard

2)    clear and convincing evidence standard

3)    mixed, depending on the evidence

4)    various approaches


The majority of states lean toward the “preponderance of evidence standard” to prove undue influence. For the most part, Florida uses this approach to make a determination. Keep in mind that it does not leave out other elements or factors which may influence the court or jury’s decision. A few of the other states which utilize approach 1 are: Arkansas, Colorado, Delaware, Michigan, Nebraska, N. Dakota, S. Dakota, and Wyoming.


A small minority of states utilize the “clear and convincing evidence” approach in order to prove an undue influence claim. Those states include: Kansas, Louisiana, Maine, New Jersey, New Mexico, and Wisconsin.


On the other hand, Hawaii utilizes a mixed view and elevates to the “clear and convincing evidence” standard when the indirect evidence needs to be “clear and convincing in character.”


Believe it or not, there are roughly thirteen (13) jurisdictions which do not have any clear case law setting the standard of proof necessary to prove undue influence.  A few of the states are: Alaska, Arizona, Kentucky, Missouri, and Montana.

An interesting read is the Iowa modern treatise by Eunice L. Ross and Thomas J. Reed, Will Contestssection 7:1 (2d ed.), in which they point out that the notion of undue influence is “a slippery concept at best” and that “courts have never been consistent in the definitions of the term, nor in the judicial tests used to evaluate proof of undue influence.” Id §7:1.

While several other states may still lack a consistent definition of the term, Florida addressed the confusion regarding the effect of presumption of undue influence in 2002. As it stands, under section 733.107(2), Florida Statutes (2013), “The presumption of undue influence implements public policy against abuse of fiduciary or confidential relationships and is therefore a presumption shifting the burden of proof under ss. 90.301-90.304.”

If you need assistance in Volusia County, Flagler County, Sumter County, Putnam County,Hillsborough County,  Miami-Dade County, Broward County, or Palm Beach County contact Florida Probate Litigation Attorney Thomas Upchurch at (386) 272-7445 for a consultation. If your county is not listed, assistance may still be provided.


This blog only reflects my personal views in my individual capacity. It does not necessarily represent the views of my law firm, and is not sponsored or endorsed by them. The information contained in the blog is based solely on opinion, and is provided only for educational purposes and is not intended to provide specific legal advice. No representation is made about the accuracy of the information posted in the blog. Blogs may or may not be updated and entries may be out-of-date at the time you view them.

The post Probate Litigation | How To Prove Undue Influence appeared first on Upchurch Law.

Share To: