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Yes you can prosecute and win an undue influence case without the presumption of undue influence.


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6/9/2012
Matthew A. Linde
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Many attorneys (and judges and even some appellate courts) incorrectly assume that if you cannot establish a presumption of undue influence (as discussed in Carpenter v. Carpenter, 253 So.2d 697 (Fla. 1971), Cripe v. Atlantic First National Bank of Daytona Beach, 422 So.2d 820 (Fla. 1982) and Hack v. Helling, 811 So.2d 822 (Fla. 5th DCA 2002)) then you might as well take it on the chin since you cannot prove that undue influence occurred.  This is not correct.

 

In fact if you are considering hiring an attorney in an undue influence case then ask that attorney what actually happened in the Carpenter v. Carpenter Florida Supreme Court case.  Carpenter is the major case in Florida concerning undue influence. However, Carpenter makes it very clear even if you cannot establish a presumption of undue influence; you can establish undue influence by a preponderance of the evidence.  For more information concerning what “a presumption of undue influence” means and facts can establish undue influence follow the link below to a sample trial brief that I recently filed.

 

http://www.floridaprobatelitigator.com/library/SAMPLE_PETITIONER_S_TRIAL_BRIEF_FOR_UNDUE_INFLUENCE.pdf



Category: Probate litigation and will contests

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