Common Signs of Undue Influence


Florida courts have held that the following behaviors may demonstrate undue influence.  If you suspect that your relative’s will, trust, deed et cetera was changed improperly, do any of these look familiar?

1. Confidential (i.e. private) relationship between the testator and the person allegedly exerting undue influence. In re Estate of Carpenter, 253 So. 2d 697, 701 (Fla. 1971);

2. Fiduciary Relationship between the testator and the person allegedly exerting undue influence. Jordan v. Growney, 416 So. 2d 24, 25 (Fla. 4th DCA 1982);

3. Presence of the person allegedly exerting undue influence at the execution of the will or trust. Carpenter, 253 So. 2d at 702;

4. Presence of the person allegedly exerting undue influence on those occasions when testator expressed a desire to make the will or trust. Id.;

5. Recommendation by the person allegedly exerting undue influence of counsel to draft will and relationship between counsel and the person allegedly exerting undue influence. Id.; Herman v. Kogan, 487 So.2d 48, 49 (Fla. 3d DCA 1986);

6. Knowledge of the contents of the will or trust by the person allegedly exerting undue influence prior to execution. Carpenter, 253 So. 2d at 702; 

7. Giving instructions on preparation of will by the person allegedly exerting undue influence to the attorney drawing the will. Id.;

8. Payment of will or trust preparer by the person allegedly exerting undue influence. Id.;

9. Securing witnesses to the will by the person allegedly exerting undue influence. Id.;

10. Safekeeping of the will by the person allegedly exerting undue influence subsequent to the execution. Id.;

11. Execution of will or trust is kept secret from will contestants by the person allegedly exerting undue influence. In re Estate of Burton, 45 So. 2d 873, 875 (Fla. 1950);

12. Age of the testator or settlor. Id.;

13. Opportunity for the exercise of undue influence. Id.;

14. Weak mental and physical health of testator or settlor. In re Estate of Reid, 138 So. 2d 342, 349-50 (Fla. 3d DCA 1962), overruled in part on other grounds, Carpenter, 253 So.2d at 698; 

15. Beneficiary caring for testatrix during final months of testatrix's life. Elson v. Vargas, 520 So. 2d 76 [Fla. 3d DCA 1988], review denied, 528 So. 2d 1181 [Fla. 1988];

16. The person allegedly exerting undue influence meeting alone at the attorney's office and instructing the attorney to prepare the testatrix's will designating the beneficiary as the sole beneficiary and personal representative. Id.;

17. The unnatural disposition of testatrix's property. Burton, 45 So. 2d at 875;

18. The person allegedly exerting undue influence taking complete charge of testatrix's estate, thereby placing herself in a fiduciary capacity. Clark v. Grimsley, 270 So. 2d 53, 58 [Fla. 1st DCA 1972]; 

19. The person allegedly exerting undue influence treating the will execution process as an urgent matter. Carpenter, 253 So. 2d at 702;

20. The person allegedly exerting undue influence is the sole, not just a substantial beneficiary. In re Estate of Van Aken, 281 So. 2d 917, 918 [Fla. 2d DCA 1973];

21. The person allegedly exerting undue influence arranging the appointment with the beneficiary's attorney. Id;

22. A dramatic change from former testamentary intentions. Newman v. Smith, 77 Fla. 667, 675 82 So. 236, 248 [Fla. 1919], rehearing denied, 77 Fla. 688, 82 So. 236 [Fla. 1919]; and

23. Opportunity and motive or interest. Gardiner v. Goertner, 110 Fla. 377, 386, 149 So. 186, 190 [Fla. 1932].

Matthew A. Linde
http://www.nelf.org/find-a-cela/florida?view=employee&id=522
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