Lack of Testamentary capacity and undue influence – what are the legal standards?

How Can you Prove Undue Influence?

For a Will to be valid, certain conditions must be met. The testator must have legal capacity, at least eighteen years old, must 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 is 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.”

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:

(a) Presence of the beneficiary at the execution of the will;
(b) Presence of the beneficiary on those occasions when the testator expressed a desire to make a will;
(c) Recommendation by the beneficiary of an attorney to draw the will;
(d) Knowledge of the contents of the will by the beneficiary prior to execution;
(e) Giving of instructions on preparation of the will by the beneficiary to the attorney drawing the will;
(f) Securing of witnesses to the will by the beneficiary; and
(g) Safekeeping of the will by the beneficiary subsequent to execution.

Because of this multi-factor test, this area of law is notable not black and white. The 4th DCA, 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.” Each case is a highly fact sensitive one. In Blinn, the testator’s mental health had been severely declining six years before his death. He began making poor financial decisions, including playing many scam foreign lotteries, and his yacht brokerage business began to lose money because of his declining mental health. He also married his fourth wife five years before he died, one year after their marriage, he executed a will that left the entire estate to his wife. This was a complete departure from his previous wills that had provided for his family. Two lawyers were involved with the drafting and signing of the will, and their testimony sharply conflicted. 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 evidenced in Blinn, these cases require the court to do significant fact finding about the events surrounding and leading up to the signing of the will, including the relationships that the testator had.

If you are interested in more information on how to best effectuate your wishes, or if you are interested in knowing more about how to Contest a Will for undue influence, please do not hesitate to contact the lawyers at Chepenik Trushin LLP, who are experienced, ready, and willing to help – Bart Chepenik, 305-613-3548, Brad Trushin, 305-981-8889, we are always available around the clock.

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