Are you a “Dutiful Child”, who is a caregiver for your loved one? The Florida laws explained.

Florida’s ‘Dutiful Child’ Exception

Throughout life, relationships and priorities often change, necessitating amendment to one’s Last Will and Testament to reflect these changes. However, sometimes these testamentary changes raise questions as to the testator’s motivations for the revisions, leading to a will contest. “Undue influence” upon the testator is one basis for challenging the validity of a will, trust, or other testamentary document. While litigating the issue of undue influence can be complex, the basic concept is straightforward: an individual is accused of improperly persuading a (often vulnerable and elderly) testator to draft or amend their will for that person’s individual benefit.

Florida courts consider several factors when assessing claims of undue influence over a testator, including the beneficiary’s arranging for the testator to prepare a will, knowledge of the contents of the will, and presence during the execution of estate planning documents. On paper, these factors seem like red flags pointing towards a finding of undue influence. Yet in reality, these are common actions of adult children simply caring for their elderly parents. So, how can an adult child helping their parent with estate planning justify these actions when faced with an allegation of undue influence?

In Florida, courts have recognized the issues with claims of undue influence that may arise where a testator’s children have aided their parent in caretaking, estate planning and execution of testamentary documents. Often referred to as the “dutiful son” or “dutiful daughter,” Florida case law has recognized situations where the alleged influencer was simply acting dutifully in their role as a child, rather than working to unduly influence the testator. Notably applied in 1988 by the First District Court of Appeals,[1] the ‘dutiful child’ exception recognizes that factors potentially indicating undue influence in some circumstances may naturally be present in a close parent-child relationship, without any intent to influence a parent testator.

Consider the facts of Estate of Kester v Rocco, in which the 1st DCA held there is no presumption of undue influence where “communications and assistance are consistent with a dutiful adult child towards an aging parent.”[2] In 2011, Barbara Kester died leaving a will that named all five of her adult children as equal beneficiaries. She additionally listed one of her daughters, Glenna, as a payable-on-death beneficiary for two of her bank accounts and appointed Glenna as the personal representative of the estate. After distributing the estate, two disfavored siblings alleged that Glenna had unduly influenced Barbara by pointing to evidence that Glenna aided her mother in several tasks, including preparing her estate planning documents.

The 1st DCA looked at Glenna’s close relationship with her mother, ultimately finding that it was insufficient to infer any undue influence. Evidence of a close relationship between a parent and adult child, the court pointed out, where the child often assisted the parent in doing tasks is not sufficient to demonstrate undue influence. Notably, the Kester court underscored its opinion with an acknowledgment of the importance of protecting the close relationship between a parent and adult child, stating “ultimately, if an adult child cannot talk to his parent, then we have finally demolished the family ties of love and natural affection.” [3]

While a parent-child relationship does not automatically preclude an undue influence claim, Florida’s recognition of the ‘dutiful child’ narrows the reach of undue influence will challenges and expands the protections of important family relationships.

Understanding the legal requirements of undue influence and the dutiful child exception is often a complex endeavor that requires an experienced probate litigation attorney. The knowledgeable attorneys at Chepenik Trushin LLP will consider your unique circumstances, and ensure you’re informed of all your legal options. Call Bart Chepenik now at 305-613-3548 or Brad Trushin at 305-981-8889 now to speak to an attorney with expertise in probate litigation matters. For more information click on this link



[1] Carter v. Carter, 526 So. 2d 141 (Fla. 1st DCA 1981)

[2] Estate of Kester v. Rocco, 117 So. 3d 1196, 1200 (Fla. 1st DCA 2013) (internal citations omitted).

[3] Id. (internal quotations omitted) (quoting Carter).

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