In Florida, a Last Will & Testament or a Trust can be contested for a number of reasons, including fraud, duress and undue influence. In the case of undue influence, if a substantial beneficiary under a Will or Trust occupies a confidential relationship with the person who executed the instrument and is active in procuring the contested Will or Trust, a presumption of undue influence arises. So what does it mean that a person is active in procuring?
As a practical matter, no person in their right mind is going to admit that they unduly influenced someone to sign or were active in procuring a Will or Trust. This means that when a Will or Trust is contested, the court must look at other “circumstantial” evidence of undue influence. This is particularly true when it comes to proving active procurement.
In the leading case of In Re: Estate of Carpenter, the Florida Supreme Court ruled that certain criteria should be considered in determining active procurement. These include: (a) The presence of the beneficiary at the execution of the Will or Trust; (b) The presence of the beneficiary on those occasions when the testator expressed a desire to make a Will or Trust; (c) A recommendation by the beneficiary of an attorney to draw the Will or Trust; (d) Knowledge of the contents of the Will or Trust by the beneficiary prior to execution; (e) Giving of instructions on preparation of the Will or Trust by the beneficiary to the attorney drawing the Will or Trust; (f) Securing of witnesses to the Will or Trust by the beneficiary; and (g) Safekeeping of the Will or Trust by the beneficiary subsequent to execution.
Subsequent to the Carpenter case, other courts have ruled that these are not exclusive criteria and not all of the items listed must be present. In some cases, only a few of the criteria may apply and in others, there may be additional criteria taken into account. Ultimately, it is up to the court to weigh the criteria and determine whether there was active procurement of the Will or Trust.
Before undertaking a challenge to a Will or Trust, you should consult with an attorney who practices in the area of estate and probate litigation.
