When a family member or loved one decides to challenge a Will (or a Trust) based on "undue influence," proof is often a challenge. Undue influence in executing a Will is not usually exercised openly in the presence of others. It is usually perpetrated in secret. Changes made to a person's estate plan due to undue influence are often hidden by the perpetrator. As a result, most of the time undue influence cannot be proven directly. In many instances, it must be proven by way of presumptions and indirect or circumstantial evidence.
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."
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?
In Florida, probate is a court proceeding which administers a deceased person's estate. It may be done either testate--with a Will--or intestate--without a Will. The probate process is usually referred to as "administration" of the estate.
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.