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The Role of “Active Procurement” in Challenging a Florida Will

| Oct 9, 2020 | Firm News |

In Florida, when a person wishes to challenge a Last Will and Testament, one of the most frequent grounds alleged is “undue influence.” One common definition of undue influence is excessive persuasion that causes another person to act or refrain from acting by overcoming that person’s free will and results in inequity. A challenge to a Will based on undue influence typically alleges that one person unduly persuaded another person to name them in a Will.

When people impose undue influence, they do not announce it and often they hide their trail. As a result, proof can be difficult. So how does a person challenging a Will prove undue influence? In Florida, one way is through the use of certain presumptions of undue influence. A presumption arises 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) that person is a substantial beneficiary of the Will. This blog addresses the “active in procuring” aspect of undue influence.

Florida courts may consider a number of factors on the issue of active procurement of a Will. In re: Carpenter’s Estate, 253 So.2d 697 (Fla., 1971). These can include:

(a) the presence of the beneficiary at execution of a Will;

(b) the presence of the beneficiary on those occasions when testator expressed a desire to make or update a Will;

(c) the recommendation by the beneficiary of an attorney to prepare a Will;

(d) the knowledge of the contents of a Will by the beneficiary prior to execution;

(e) the giving of instructions on the preparation of a Will by the beneficiary to attorney preparing the Will;

(f) the securing of witnesses to the Will by the beneficiary; and

(g) the safekeeping of the Will by the beneficiary subsequent to execution.

These seven elements are not exclusive and not all of these elements must be present. In fact, in most cases, less than all of the elements are usually present. A court must weigh these elements, along with any others which might be relevant, in order to determine whether there was active procurement.

When litigating a Will contest, the nature of the dispute involves many facts. Having an attorney who knows both estate and probate law as well as trial practice is a must. Not all probate lawyers litigate cases and not all litigation lawyers know estate law. As a result, getting someone who practices in both is a must.

 

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