Florida Undue Influence Lawyer
Proving Undue Influence Can Nullify a Suspicious Will or Trust
If you or a loved one has been unfairly influenced to create a binding contract, you may be able to claim undue influence. Attorney Thomas Upchurch in Daytona Beach, FL, has a wealth of experience trying cases in which one party has unfairly influenced the other to engage them in a binding contract. Mr. Upchurch has the expertise necessary to defend your rights.
Contact Upchurch Law with questions, or to schedule a free case evaluation.
What is Undue Influence?
Undue influence occurs when someone takes advantage of another party, resulting in a binding contract. Often, cases of undue influence involve caregivers and clients. However, cases have also involved trustee and beneficiary, administrator and legatee, pastor and parishioner, and others. The caretaker uses their influence to convince a vulnerable party to create a new will or trust. The document may exclude spouses, children, or other family members who ordinarily would have been named as beneficiaries. Instead, the caregiver will be the primary or only beneficiary of the will.
Caregiver abuse is only one example of undue influence. Flattery, deception, and similar behavior may also qualify. It is important to note that undue influence differs from duress. Duress involves threats, physical abuse, blackmail, and related conduct.
There are very specific guidelines to establish undue influence, making it vital that you work with an experienced attorney. Mr. Upchurch focuses solely on probate law, and has successfully litigated a wide range of undue influence cases.
Proving an Undue Influence Claim
Your case must meet four criteria to qualify as undue influence:
- You or your loved one was vulnerable to manipulation. Disability and dependence can make someone more susceptible to undue influence. Mental incapacitation is another consideration.
- A confidential relationship existed between the two parties. Many cases of undue influence involve relationships between caregiver and client. Other relationships can include guardian and ward, parent and child, doctor and patient, and even husband and wife.
- Evidence that the defendant was likely to exert undue influence. The courts may evaluate the defendant’s past behavior and testimony by family. They may also consider how involved the defendant was in the creation of the document.
- The document itself must be held in suspicion. If a testator changes a will quickly and dramatically, this may be suspicious. It can be particularly suspect if the testator did this following a serious medical diagnosis or declaration of incompetence.
Why an Experienced Attorney is Important
There are very specific guidelines to establish undue influence, making it vital that you work with an experienced attorney. Mr. Upchurch focuses solely on probate law, and has successfully litigated a wide range of undue influence cases. He is particularly renowned for his success in handling estate litigation. With his far-reaching expertise, Mr. Upchurch can provide outstanding legal representation. At the same time, he will treat you and your family with respect and compassion, knowing how stressful this time can be.
Contact Upchurch Law Today
Contact our office today to learn more about undue influence, and to find out if you have a viable claim. If we are unable to answer your questions immediately, we will be in contact within 24 hours.
Can I raise an undue influence claim on my own?Once these three elements have been established, a presumption of undue influence arises. However, that does not necessarily mean that the court will find undue influence, since the accused beneficiary may present evidence to rebut the presumption. Legally, you can choose to initiate a claim of undue influence on your own. However, it is important to remember that representing yourself in court does not change or relax the rules of evidence and procedure—you will be expected to follow all technical and procedural requirements and understand the legal provisions just as an attorney would be. Undue influence cases are nuanced and can be difficult to prove, so it is in your best interest to have an experienced advocate by your side.
How can I prove undue influence?An experienced Florida estate lawyer can help you construct your undue influence claim. You must establish that the accused influencer:
- Receives a substantial benefit under the terms of the will or trust,
- Enjoyed a confidential relationship with the deceased; and
- Actively procured the will
What are the warning signs of undue influence?Undue influence is often discovered after the fact, when the deceased’s will is submitted to probate and family members learn of a radical change compared with a longstanding will or what the testator has led them to expect. But, awareness of the risk factors and signs associated with undue influence can help protect your loved ones during their lifetimes. Be on the lookout for:
- A new “friend” who has suddenly taken on a prominent role in the life of an elderly or ailing relative
- Isolation, particularly if a caregiver or local family member discourages contact
- Financial changes, unusual loan requests, and other signs that a person may be suffering other forms of financial abuse
- Fearfulness, depression, and other changes that may suggest your loved one is being subjected to new stressors
What are some examples of undue influence?No one factor determines undue influence. However, some common undue influence scenarios include:
- A caretaker on whom a sick or elderly person depends playing on that person’s fear of being neglected or left alone to convince him to change his will to benefit the caretaker
- One family member who is local running interference with the rest of the family to convince the vulnerable person that the influencer is the only one who cares about her and thus is the only one who should benefit from the estate
How does undue influence occur?Undue influence happens in many ways, but there are common threads. For example, the person subjected to undue influence is somehow vulnerable. This may be because he or she is ill and dependent on a family member or other caretaker, because his or her cognitive abilities are fading, or simply because isolation has eliminated checks and protections that might otherwise prevent that person from being victimized. Second, the influencer exerts some degree of control in procuring the will or trust. The Carpenter factors describe some ways in which this procurement might occur, but the list is not exhaustive. For example, a caretaker could talk an elderly patient through the process of generating a will online rather than involving an attorney at all, or even draft a document for the charge to sign using forms. The bottom line is that undue influence occurs when someone in a position of trust takes advantage of the weakness or vulnerability of another person to persuade or coerce that person to create a will or trust that benefits the influencer.
What other types of factors will a court consider in determining undue influence?A court may also consider factors such as:
- Whether the accused beneficiary actively kept the deceased isolated and fostered alienation of family members
- The reasonableness of the terms, which is not alone sufficient to invalidate a will, but may be evidence of undue influence
- Mental disparity between the decedent and the accused beneficiary, such that the decedent could have been easily influenced
What are the Carpenter factors?In determining whether a person exerted undue influence in the creation of a will or trust, the Florida Supreme Court has directed judges to consider the following seven factors:
- Was the accused beneficiary present when the will was executed?
- Was the accused beneficiary present when the deceased discussed his or her desire to make a will or create a trust, and his or her intentions regarding beneficiaries?
- Was the attorney who drafted the will recommended by the accused beneficiary?
- Did the accused beneficiary have knowledge of the contents of the will or trust prior to execution?
- Did the accused beneficiary provide instructions to the attorney drafting the will or trust document?
- Did the accused beneficiary recruit the witnesses to the will?
- Was the accused beneficiary in possession of/responsible for safekeeping of the document after execution?
Who may be liable for undue influence?While many factors are considered in assessing whether undue influence occurred, a person found to have exerted undue influence must have enjoyed a confidential relationship with the decedent, and must have actively participated in procuring the will or trust. Active procurement is established largely, though not entirely, through consideration of “the Carpenter factors”—factors set forth by the Florida Supreme Court in an undue influence case in 1971.
What constitutes undue influence in Florida?Undue influence in estate planning occurs when a person is pressured, tricked, or in some other way compelled by a third party to execute estate planning documents that do not reflect his or her true wishes. Simply making a suggestion or offering advice generally does not constitute undue influence. Rather, a party challenging a will or other legal document on the grounds of undue influence must typically show that the person executing the document was particularly vulnerable to influence as a result of his or her circumstances and relationship to the influencer.
They are well organized, detail oriented, and always looking for the best solution to the client's situation (not just the easy fix).- Chris B.
It gave me peace of mind and when I return I will go to him for my Will.- Lauri B.
Thomas Upchurch and his team have been remarkable in helping me take care of my grandmother's estate needs and Medicaid application to get her the care she deserves.- Ashley M.
I have had the privilege of working with Mr. Upchurch on behalf of numerous shared clients over the years. Each and every client has always expressed to me their thankfulness that Thomas Upchurch was involved in their case.- Ron Z.
I was highly impressed with Mr. Upchurch's skills and integrity, and feel very fortunate to have had him as our family's legal representative.- Gregory H.
Thomas and his staff were so helpful and professional which really helped my family and I when we didn't know what to do.- Maggie
Upchurch Law, and particularly Crystal Lukes (Legal Assistant), could not have been more competent, informative, pleasant to work with and aggressive in pursing a Probate close in a timely fashion.- Dorothy K.
Attorney Thomas Upchurch is professional, efficient, and knowledgeable of both probate litigation and estate planning.- Susan S.