By Coleman P. Hengesbach, Esq.
Far too often a loved one learns that their mother or close relative cut them out of the will unbeknownst to them. It is only after their loved one’s passing that they begin to unwind the events that lead to their disinheritance. A common challenge to the validity of a will or trust is undue influence.
Undue Influence is a legal cause of action that can be utilized to challenge the validity of a will or trust. In cases involving undue influence challenges, it is typically a child, neighbor or close friend that facilities the execution of a will or trust by bringing the individual to an attorney’s office and is intimately involved in the planning process.
Florida has a long history of legal challenges to the validity of someone’s will or trust. The most recognized case on this subject was decided by the Florida Supreme Court in 1971 in the case In re Carpenter’s Estate. In Carpenter, relied on certain factors or signs when assessing whether undue influence was present and held that when a person occupies a confidential relationship with a testator, is a substantial beneficiary of the will, and is active in procuring the contested will, a presumption of undue influence arises.
The Carpenter Court outlined the following seven (7) factors to be considered in determining whether undue influence is presumed:
- Presence of a beneficiary at the execution of the will;
- Presence of the beneficiary on those occasions when the testator expressed a desire to make a will;
- Recommendation by the beneficiary of an attorney to draw the will;
- Knowledge of the contents of the will by the beneficiary prior to execution;
- Giving of instructions on preparation of the will by the beneficiary to the attorney drawing the will;
- Securing of witnesses to the will by the beneficiary; and
- Safekeeping of the will by the beneficiary subsequent to execution
Following the decision in Carpenter, Florida Courts have observed other additional factors that may be present in undue influence cases, including, isolation of the testator and disparaging of family members; mental disparity between the beneficiary and decedent and reasonableness of the will or trust.
Needless to say, navigating through a will or trust contest requires an experienced lawyer at your side, particularly in cases involving undue influence. Individuals being accused of exercising undue influence over someone are distrustful, deceitful and manipulating. Hengesbach and Hengesbach, P.A. offers a free attorney evaluation of your potential case. For more information, feel free to visit our website at www.willtrust.com or email me directly at coleman@hengesbachlaw.com.
