For a Will to be valid, certain conditions must be met. The testator must have legal capacity, be at least eighteen years old, have testamentary intent, and the will must not be a product of undue influence or duress. The first two requirements are usually relatively easy issues to resolve, but undue influence and duress are not always clear. As the Supreme Court of Florida explained, “[u]ndue influence is not usually exercised openly in the presence of others, so that it may be directly proved, hence it may be proved by indirect evidence of facts and circumstances from which it may be inferred.”
The Fourth District Court of Appeal, in Blinn v. Carlman, stated that, “[w]hen a will is challenged on the grounds of undue influence, the influence must amount to over persuasion, duress, force, coercion, or artful or fraudulent contrivances to such an extent that there is a destruction of free agency and willpower of the testator.” When a will is a product of undue influence, it, by definition, is not the intent of the testator, and therefore courts should not give effect to it.
In In re Estate of Carpenter, the Supreme Court of Florida listed a set of seven, non-exhaustive factors to consider when deciding cases of undue influence:
- Presence of the 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.
Because of this multi-factor test, this area of law is notably not black and white. Each case is a highly fact-sensitive one. In Blinn, the testator’s mental health had been severely declining approximately seven years before his death. He began making poor financial decisions, including many scam foreign lotteries, and his yacht brokerage business began to lose money. He also married his fourth wife five years before he died. Two lawyers were involved with the drafting and signing of a 2008 will, though their testimony sharply conflicted. The 2008 will left the entire estate to his wife. This was a complete departure from his previous wills that had provided for his family. Additionally, there was an inadvertent recording of a voicemail of the testator’s wife yelling at the testator that his daughter was stealing from him. The court found that the wife had clearly influenced the testator and thus did not probate the will.
As illustrated in Blinn, these cases require the court to do significant fact-finding about the events surrounding and leading up to the signing of a will, including the relationships that the testator had. Most cases do not have evidence as clear as an angry voicemail.
The importance of one’s ability to execute his or her Will with the formality the law requires is evidenced in undue influence law. If you are interested in more information in how to best effectuate your wishes, please do not hesitate to contact the lawyers at Chepenik Trushin LLP, who are experienced, ready, and willing to help – 305-981-8889, Bart Chepenik, 305-613-3548, Brad Trushin, 305-321-4946. We are always available to answer a few questions of concern.
 Gardiner v. Goertner, 110 Fla. 377, 385 (1932).
 159 So. 3d 390, 391 (4th DCA 2015) (internal quotations omitted).
 253 So.2d 697, 702 (Fla. 1971).
 Blinn, 159 So. 3d at 391.