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Proving Undue Influence in Florida Will Contests

On Behalf of | Oct 3, 2016 | Elder Law, Estate Planning, Probate |

A “Will contest” is an action to challenge the valuidity of a Last Will and Testament. In Florida, perhaps the most common basis for challenging a Will is grounded on allegations of “undue Influence.” Undue influence, such as would void a Will, has been defined to include over persuasion, coercion, or force that destroys or hampers the free agency and will power of the person making the Will.

Undue influence over a person making a Will is presumed when: (1) a person with a confidential relationship with the testator, (2) was active in procuring or securing the preparation or execution of the Will and (3) is a substantial beneficiary thereof. Caselaw in Florida has recognized that a confidential relationship exists where there is a relationship based upon trust or confidence one person reposes in another. 

The leading Florida case on “active procurement” of a Will by a beneficiary is In re: Carpenter. That case sets forth the following criteria: 1) presence of beneficiary at execution, 2) presence of beneficiary on those occasions when testator expressed desire to make will, 3) recommendation by beneficiary of an attorney to draw will, 4) knowledge of contents of will by beneficiary prior to execution, 5) giving of instructions by beneficiary on preparation of will to attorney;  and 6) safekeeping of will by beneficiary subsequent to execution. Not all of the Carpenter criteria have to be present but the more there are, the more likely of a successful result in challenging the Will.

If you think that a family member or loved one has died with a Will that might have been procured through undue influence, you should consult with an attorney experienced in handling probate and estate litigation.


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