If you have a loved one who passed away and left a will or trust that seems suspicious or unfair, you may wonder if they were coerced or manipulated by someone else to change their estate plan.
Perhaps a caretaker, aide or family member became a beneficiary, and other family members were excluded.
This is a serious allegation that can lead to estate litigation and challenge the validity of the will or trust. In legal terms, this is called undue influence for Florida estate litigants.
Undue influence occurs when a person who has a substantial benefit under the will or trust uses their position of trust, confidence or authority over the testator (the person who made the will or trust) to influence them to act contrary to their own wishes and intentions. Undue influence can be exerted by a caretaker, aide, family member, friend, attorney or anyone else who has access and influence over your loved one.
Not the same as persuasion
Undue influence is not the same as persuasion, advice or suggestion. It is a form of fraud that deprives the testator of their free will and makes them act as if they were under the control of another person. Undue influence can be subtle or overt, and it can occur over a long period of time or shortly before the testator’s death.
How to prove
Proving undue influence can be difficult because it usually happens behind closed doors and without direct evidence. However, Florida law provides a way to shift the burden of proof from the person challenging the will or trust (the contestant) to the person defending it (the proponent) by raising a presumption of undue influence.
Legal standard of undue influence
According to Florida Statutes, Section 733.107(2), a presumption of undue influence arises in situations with three factors. First, the proponent of the will or trust had a substantial benefit under it. Second, you must prove they had a confidential relationship with your loved one. Finally, the proponent was active in the will’s procurement.