In a will contest alleging undue influence how do courts interpret the term "active procurement?"

(a) Presumption of Undue Influence

In undue influence cases, there is a presumption that undue influence occurred if the proponent of a will or other document (it could be a deed or a check) had a confidential relationship with the author of the document and actively procured the document.  You can still prevail on an undue influence claim without a presumption of undue influence, but only if prove that a defendant actively influenced the document author to the point that it was really the defendant that was acting and not your loved one.  It is much harder to prove your claim if you do not have the benefit of the presumption because what a defendant does is usually done when only the defendant and the document author were present.  Further, to validly assert the legal doctrine of undue influence, the contestant must focus more upon the weak mental orientation of the testator than the motives of beneficiary.  See In re Estate of McClenahen, 476 So. 2d 1289 (Fla. 2d DCA 1985).


(b) Active Procurement

When a confidential relationship exists between the beneficiary and the testator, a presumption of undue influence may arise if it can be shown that the beneficiary actively procured the will. The leading case in this respect is In re Estate of Carpenter, 253 So. 2d 697 (Fla. 1971) .

The Carpenter case defined active procurement as follows:

"Several criteria to be considered in determining active procurement emerge from a study of these cases: (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.  We recognize that each case involving active procurement must be decided with reference to its particular facts. Therefore, the criteria we have set out cannot be considered exclusive; and we may expect supplementation by other relevant considerations appearing in subsequent cases. Moreover, we do not determine that contestants should be required to prove all the listed criteria to show active procurement. We assume that in the future, as in the past, it will be the rare case in which all the criteria will be present. We have troubled to set them out primarily in the hope that they will aid trial judges in looking for those warning signals pointing to active procurement of a will by beneficiary."   See Carpenter at 702.

Other examples of active procurement can be found in In re Estate of Smith 212 So.2d 74, 76 (Fla. 4th DCA 1968): 

We are concerned with the proper construction to be put on the phrase "active in procuring the will" so as to raise the presumption of undue influence.

In re Peters' Estate, 1945, 155 Fla. 453, 20 So.2d 487, was a case in which the principal beneficiary was a physician and a long-time friend of a 77-year-old widow. Her physical strength was reduced in keeping with her years but her mentality was not shown to have declined. The only connection which the physician had with the procuring of the will was in being present  on the occasions when the testatrix expressed her desire to make a will and when she gave here attorney instructions on making the will. The court stated that the law should require a more active or definite participation than this in order to raise the presumption.

In Sturm v. Gibson, Fla.App.1966, 185 So.2d 732, the beneficiary had been a ranch foreman for the testatrix and had occupied the same dwelling house with the deceased for some time prior to her death. His activity consisted of recommending the attorney who drew the will and driving the testatrix to the lawyer's office, but he was not present when the will was executed nor did he know its contents until the death of the testatrix. The court held that this activity was not active procurement of the execution of the will.

In re Knight's Estate, Fla.App.1959, 108 So.2d 629, involved the testator's wife and brother as the principal beneficiaries. Before the testator went to the hospital he informed the brother of his wishes as to the contents of his proposed will, after which the brother consulted a firm of attorneys, gave them the instructions for the preparation of the will, received the draft thereof and kept it in his possession until it was presented to the testator at the hospital. The brother assisted in procuring the formal witnesses to the will, was present when it was executed, received it from the testator and kept it in his possession until it was presented for probate. The court held that this was active procurement of the execution of the will sufficient to raise the presumption of undue influence.

In re Estate of MacPhee, Fla.App.1966, 187 So.2d 679, concerned a testatrix who was 88 years of age when she executed her will five days prior to her death. The principal beneficiary, Rast, held her power of attorney and was her business adviser. Some of these transactions were between the testatrix and Rast, most of which were to the personal benefit of Rast. Mr. Rast carried to the attorneys information as to what the will was to contain, brought the will to Mrs. MacPhee for execution, and secured the necessary witnesses. The court held that this was an active procurement of the will.

Contact Florida Bar Board Certified wills, trusts and estates expert Matthew A. Linde today at 239.939.7100 or 844.357.0572 for more information!

Matthew A. Linde
Connect with me