Florida is a mecca for the elderly. No state income tax and no snow attract many retirees. Retirees often pay increased attention to estate planning, as many anticipate the road ahead will be shorter than the road behind. Beneficiaries may be even more interested, particularly if they see an opportunity to get a bigger part or all of the retirees’ estate by “helping” them with their estate plan.
Section 732.5165 of Florida Statutes provides that any part of a Will procured by fraud, duress, mistake or undue influence is void. Fraud is governed by the traditional concepts of misrepresentation and reliance on the misrepresentation. Mistake is when the written Will does not really accomplish what the person intended. Although fraud and mistake can form the basis for challenge to a Will, far more often the objector claims of duress or undue influence, often in combination. Undue influence means more than a beneficiary encouraging a gift. It must be so powerful as to control the testator’s mind. The direction of the persuader is controlling and the person signing the Will does not act voluntarily.
If an interested party believes that a Will is the product of undue influence, the interested party must introduce some evidence. That evidence is almost always circumstantial. Once a presumption of undue influence is established the burden of proof shifts to the person who wants the Will to be upheld.
Florida’s Supreme Court summarized factors to be considered in the 1971 case of In Re Estate of Carpenter v. Carpenter. In the Carpenter case, Mrs. Carpenter left her entire estate to her daughter, Mary Redman Carpenter, and nothing to her three surviving sons. Two of the sons contested the Will on ground that it was procured by undue influence. The court explained that proving undue influence requires establishing a beneficiary had a confidential relationship with the testator and was active in procuring the Will (or Trust). The court went on; a confidential relationship is same as a fiduciary relationship and exists wherever one person trusts in and relies upon another. The court stated that the relation and duties involved need not be legal and may be moral, social, domestic or merely personal. The Carpenter court agreed that the daughter occupied a fiduciary or confidential relationship with her mother and proceeded to examine criteria to be considered in addressing the question of active procurement. The court attempted to distill criteria from intermediate appellate court decisions.
The court listed seven criteria to be considered in determining active procurement which have subsequently been referenced as the “Carpenter factors”: 1) Presence of the beneficiary at the execution of the will; 2) Presence of the beneficiary on those occasions when the testator expressed a desire to make a will; 3) Recommendation by the beneficiary of an attorney to draw the will; 4) Knowledge of the contents of the will by the beneficiary prior to execution; 5) Giving of instructions on preparation of the will by the beneficiary to the attorney drawing the will; 6) Securing of witnesses to the will by the beneficiary; and 7) Safekeeping of the will by the beneficiary subsequent to execution.
The court went on to explain that each case would require careful review of particular facts. The Carpenter factors were not to be considered exclusive and other relevant criteria could appear in later cases. The court also noted that not all factors had to be present to establish or show active procurement. The court stated it would be a rare case in which all criteria will be present.
The Carpenter court decided the challenging brothers had established a presumption of undue influence, which required Mary introduce some evidence to rebut the presumption. The court opined disproving undue influence would be very difficult, so it ruled Mary only had to introduce some evidence to rebut the presumption. It found Mary’s testimony at trial concerning her close relationship with her mother and the reason for her activity in connection with execution of the Will a reasonable explanation and sufficient to rebut the presumption. That placed back on the challenging sons the burden of establishing undue influence by greater weight of the evidence.
Florida’s legislature recently decided to change that burden of proof. In 2014, it amended Section 733.107 Florida Statutes to provide that once that presumption of undue influence is established, the proponent of the Will must establish by greater weight of the evidence that the Will was not the product of undue influence. That is exactly what the Carpenter court thought would be a problem.
Although the Carpenter court did a good job of summarizing seven important criteria, it did not include additional criteria which have been considered by Florida courts in the undue influence discussion. One of those factors is insulating the testator and belittling family members. Those efforts to belittle or criticize family members often include false statements and claims.
Difference in mental condition or ability is also considered. This issue can involve mental acuity and strength of resolve or, what is termed by the courts as “strong will.” The person with a “weak will” or limited mental acuity may be overrun by a strong willed influencer.
The courts have also considered consistency of the Will with prior statements or even prior Wills. When courts find inconsistency between a long pattern of testamentary intent or promises made by a testator and a Will submitted for probate, courts can conclude the submitted Will is a product of undue influence.
Some influencers are not willing to wait until the testator dies. In those cases, the influencer gets assets or accounts transferred before death. Lifetime transfers are also subject to challenge for undue influence, with the same criteria applied, plus one. Courts consider secrecy of a lifetime transfer another issue of undue influence.
Undue influence means more than mere influence. It is substitution of the Will of one person for that of another. Nonetheless, when beneficiaries expect to inherit and find their share of the pie smaller than expected, their effort to “correct” distribution may involve court consideration of the criteria discussed in this article.
William G. Morris is the principal of William G. Morris, P.A. William G. Morris and his firm have represented clients in Collier County for over 30 years. His practice includes litigation and divorce, business law, estate planning, associations and real estate. The information in this column is general in nature and not intended as legal advice.