The presumption of undue influence is one of the most important tools in a Florida will contest. When it applies, the beneficiary accused of overreaching, not the family member challenging the will, must prove that the will reflects the testator’s own free choice. Section 733.107, Florida Statutes, sets out how that burden works.
Undue Influence Under Florida Law
Under section 732.5165, a will is void if its execution is procured by fraud, duress, mistake, or undue influence. If only part of the will was procured that way, only that part is void. The same rule applies to a revocation procured by undue influence.
Florida courts describe undue influence as more than affection, kindness, or ordinary persuasion. The influence must amount to over-persuasion, coercion, or artful contrivance to the point that it destroys the testator’s free agency and willpower. Direct evidence is rare, because undue influence usually happens in private. That is why the presumption of undue influence matters so much.
Who Bears the Burden in a Florida Will Contest?
Section 733.107(1) places the initial burden on the proponent of the will to show, prima facie, that the will was properly executed and attested. A self-proving affidavit, or the oath of an attesting witness, establishes that showing. The burden then shifts to the contestant to prove the grounds for opposing probate or seeking revocation.
When Does the Presumption of Undue Influence Arise?
Under In re Estate of Carpenter, 253 So. 2d 697 (Fla. 1971), the presumption of undue influence arises when a substantial beneficiary under the will (1) occupied a confidential relationship with the testator and (2) was active in procuring the will. A confidential relationship often exists with a caregiver, an adult child handling a parent’s finances, or anyone holding a power of attorney.
To decide whether a beneficiary was active in procuring the will, Carpenter identifies factors such as:
- presence of the beneficiary when the will was signed;
- presence of the beneficiary when the testator expressed a desire to make a will;
- recommendation of the drafting attorney by the beneficiary;
- knowledge of the will’s contents by the beneficiary before it was signed;
- instructions to the attorney on the will’s preparation given by the beneficiary;
- witnesses secured by the beneficiary; and
- safekeeping of the will by the beneficiary after it was signed.
No single factor is required, and the list is not exhaustive. Courts look at the full picture.
How the Presumption of Undue Influence Shifts the Burden
Carpenter originally treated the presumption as shifting only the burden of producing evidence. Once the beneficiary offered a reasonable explanation, the presumption disappeared. In 2002 the Legislature changed that rule. Section 733.107(2) now provides that the presumption of undue influence implements public policy against abuse of fiduciary or confidential relationships and is therefore a presumption shifting the burden of proof under sections 90.301 through 90.304 of the Evidence Code.
In practical terms, once the contestant establishes the presumption, the beneficiary must prove that the will was not the product of undue influence. A simple explanation is no longer enough.
Deadlines for Raising Undue Influence
A will cannot be contested before the testator’s death. Section 732.518. After death, timing is strict. An interested person served with a notice of administration must file any objection to the validity of the will within 3 months after service, or the objection is forever barred. Section 733.212(3).
That 3-month period can be extended only for estoppel based on a misstatement by the personal representative about the deadline. In any event, objections must be filed no later than the earlier of the order of final discharge or 1 year after service of the notice of administration.
Practical Points for Families and Fiduciaries
For people planning an estate, the best protection against a later claim is a clean process. Let the testator choose the attorney and the witnesses. Keep beneficiaries out of the planning meetings and the signing. Document the testator’s reasons for any unequal gifts.
For family members who suspect a problem, act early. Medical records, the drafting attorney’s file, and the testimony of the witnesses are often central to proving the presumption of undue influence. Calendar the 3-month objection deadline the day the notice of administration arrives.
For beneficiaries and personal representatives defending a will, gather evidence of the testator’s independence: who arranged the meetings, who paid the attorney, and whether the testator met with counsel alone.
Sources: Fla. Stat. § 733.107; Steven G. Nilsson, “Florida’s New Statutory Presumption of Undue Influence—Does It Change the Law or Merely Clarify It?” 77 Fla. B.J. 20 (Feb. 2003).
Contact Cox Law, PLLC
If you have questions about the presumption of undue influence, a will contest, or estate litigation, Cox Law, PLLC serves clients throughout Florida. Contact us for a consultation by calling (813) 685-8600 or emailing Webquestion@Coxlawplc.com.
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