On occasion, clients will ask me whether they can challenge the validity a will or a deed. The answer is usually “it depends.” If the circumstances permit, the will or deed may be deemed invalid because it was obtained through undue influence. Undue influence is when one person’s free agency or will is substituted for that of another through over persuasion, force, or other fraudulent or wrongful conduct. To successfully challenge a will or inter vivos transfer of property in Florida on undue influence grounds, a litigant will need to demonstrate the following:

1. The individual who is alleged to have committed the undue influence is a substantial beneficiary under the will or inter vivos transfer;

2. The individual who is alleged to have committed the undue influence maintained a confidential relationship with the maker of the will or deed; and

3. The individual who is alleged to have committed the undue influence actively procured the will or inter vivos transfer.

Active procurement is oftentimes the most heavily litigated element of an undue influence claim in Florida. Pursuant to the Florida Supreme Court case of In Re Estate of Carpenter, courts will consider several factors to determine whether there was active procurement:

1. presence of the beneficiary at the execution of the will or deed;
2. presence of the beneficiary on those occasions when the testator or maker of a deed expressed a desire to make the will or deed;
3. whether the beneficiary recommended an attorney to draft the will or deed;
4. whether the beneficiary had knowledge of the contents of the will or deed prior to its execution;
5. whether the beneficiary instructed the attorney with regard to drafting the will or deed;
6. whether the beneficiary secured witnesses to the execution of the will or deed; and
7. whether the beneficiary retained the will or deed after its execution.

When the elements of undue influence are demonstrated, a presumption of undue influence arises pursuant to Florida Statute 733.107(2). Once the presumption of undue influence arises, the burden is then shifted to the alleged wrongdoer to prove by a preponderance of the evidence that no undue influence occurred.

Undue influence cases are fact dependent. If you have questions regarding a possible undue influence claim, contact an experienced and competent attorney to assist you.