Switch to ADA Accessible Theme
Close Menu
Pompano Beach Estate & Trust Litigation Lawyer
Schedule a Consultation Today! 954-491-7099

The Presumption of Undue Influence in a Will Contest


Estate planning is meant to ensure that a person’s wishes are carried out after he or she passes away. Unfortunately, this is not always what ends up happening, especially in cases where a testator was subject to undue influence before his or her death. Fortunately, heirs and beneficiaries who suspect that a deceased relative was the victim of undue influence have the option of contesting the will in probate court.

Although demonstrating undue influence can be difficult, it is possible, so if you are worried that your loved one’s will isn’t valid, you should speak with an experienced undue influence lawyer who can evaluate your case and advise you accordingly.

Shifting the Burden of Proof

Proving undue influence can be a difficult endeavor, as those who pressure elderly or ill individuals to leave them assets tend to act in private. Recognizing these difficulties, Florida shifts the burden of proof to the beneficiary if the Will’s challenger is able to provide proof of certain facts. Basically, if certain elements are established, a probate Court will presume that undue influence existed and the accused beneficiary will need to overcome that presumption and provide evidence that a testator was exercising his or her own judgement when drafting the Will.

Establishing Certain Elements

In order to shift the burden of proof in an an undue influence case, the person challenging the will must be able to provide proof that:

  • The person accused of undue influence received a substantial benefit under the terms of the Will;
  • The accused enjoyed a confidential relationship with the testator; and
  • The accused was active in procuring the execution of the Will.

Of these factors, the first is usually the easiest to establish, since the Will itself spells out the benefits that will be enjoyed by the accused. Similarly, demonstrating the kind of relationship that the testator and the accused had is typically straightforward, as it only requires evidence that the accused was in a position of trust and that the testator relied on him or her to a certain degree. The third element is the most difficult to prove, as it requires the assessment of another list of factors, including whether the accused beneficiary:

  • Was present at the Will signing;
  • Was present when the testator expressed a desire to create an estate plan;
  • Recommended an attorney who was then tasked with drafting the Will;
  • Knew of the contents of the Will prior to its execution;
  • Instructed the attorney who drafted the Will;
  • Participated in finding witnesses for the Will’s execution; and
  • Was named the custodian of the will upon its execution.

If, after an assessment of these factors, a court decides that the accused was active in procuring the testator’s will, the burden of proof will shift to that individual to prove to a judge that he or she didn’t exert undue influence over the Decedent. 

Help with Your Estate Litigation Matters

To learn more about what you will need to prove to shift the burden of proof in an undue influence will contest, please reach out to experienced Pompano Beach undue influence attorney Mark R. Manceri, P.A. at 954-491-7099 today.



Facebook Twitter LinkedIn

© 2019 - 2024 Mark R. Manceri, P.A. All rights reserved.
This law firm website is managed by MileMark Media.