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Contesting a Will: the Role of Undue Influence

| May 16, 2019 | Elder Law, Probate |

More and more often these days, it seems that after a family member or loved one dies, those left behind are unhappy with the way the deceased’s estate is to be distributed through their Last Will and Testament. Often, the persons feel that their loved one has been taken advantage of, perhaps due to their vulnerability or for other reasons. When a family member or loved one decides to challenge a Will (or a Trust), one of the most common grounds is based on what is known as “undue influence.” Florida has a statute, Section 732.5165, Fla. Stat., which specifically provides that “[a] Will is void if the execution is procured by fraud, duress, mistake, or undue influence.”

So what is undue influence? Black’s Law Dictionary defines undue influence as “persuasion carried to the point of overpowering the will, or such a control over the person in question as prevents him from acting intelligently, understandingly, and voluntarily, and in effect destroys his, and constrains him to do what he would not have done if such control had not been exercised.”

Similarly, Florida courts have recognized undue influence to include “over persuasion, duress, force, coercion, or artful or fraudulent contrivances to such an extent that there is a destruction of free agency and will power of the testator.” Raimi v. Furlong, 702 So.2d 1273, 1287 (Fla. 3d DCA 1997). “The doctrine of undue influence is based on theory that the testator is induced by various means, to execute an instrument which, although his, in outward form, is in reality not his will, but the will of another person which is substituted for that of testator.” Blinn v. Carlman, 159 So.3d 390 (Fla. 4th DCA 2015). Undue influence is present where a person is not left to act intelligently and voluntarily and the influence operates “to dethrone the free agency of the person … rendering his act the product of the will of another instead of his own.” Estate of Kester v. Rocco, 117 So.3d 1196 (Fla. 1st DCA 2013).

Undue influence in executing a Will is not usually exercised openly in the presence of others. In most instances, it cannot be proved directly. As a result, it may be proved by indirect evidence of facts and circumstances from which it may be inferred. In other words, persons exerting undue influence often do so in secret or in ways that may not be openly observable. As a result, a court likely will have to look at the overall situation in order to determine whether there has been undue influence.

Challenging a Will based on undue influence is done through an action brought in court. In essence, it involves filing litigation–what amounts to a lawsuit–to prove to the court that the Will is void due to undue influence. Having an attorney who is experienced in handling Will contests is crucial to the success of those challenging a Will.

Discussion of how to prove undue influence under Florida law is lengthy and complicated. As a result, such a discussion will be the topic of future blog posts.

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