Undue Influence

When creating a plan for distributing your Estate, you want to make sure that the plan truly reflects your wishes, and that no one uses any form of pressure to influence you. Florida law establishes an extensive process to create a Will and an Estate plan. The procedure requires authentication of documents in order to prevent undue influence from affecting how an Estate plan is drafted or enacted, and it provides a way to challenge Wills that are the result of such undue influence. Florida’s Probate Code states that a Will “procured by fraud, duress, mistake, or undue influence” is void. A diligent Florida probate attorney can help make sure that an Estate plan is free of undue influence and represents the true wishes of the Testator.

“Undue Influence” Defined

Florida Courts have defined “undue influence” in several ways. In 1919 the Florida Supreme Court described undue influence as “overpersuasion, coercion, or force that destroys or hampers the free agency and will power of the testator.” The person creating the Will, known as the Testator, must be subject to the control or persuasion of another to the point that the Testator cannot act voluntarily or with any agency at all. In the event of this sort of influence, the Will does not represent the Testator’s wishes but rather the wishes of the person influencing the Testator. The law allows voiding a Will that is shown to have resulted from undue influence.

Preventing Undue Influence

The law establishes a procedure for drafting, executing, and authenticating Wills. A Will must be in writing with the Testator’s signature at the end. At least two people must witness the signing of the Will by the Testator and must sign the Will themselves. The Testator may authorize the self-proof of the Will by affidavit, along with affidavits from all Witnesses. Wills that do not meet all the technical statutory requirements may need additional proof to be admitted by the Probate Court. Although a seemingly simple procedure, Wills are often executed improperly.

Challenging Undue Influence

Any person with an interest in the Estate may challenge the Will in Court by petitioning the Court and allege undue influence. Initially, the Petitioner is responsible for producing evidence of undue influence. Florida law creates a presumption of undue influence in certain circumstances. If the petitioner can show that a person who substantially benefits under the Will had a close confidential relationship with the Testator and played an active role in preparing or procuring the Will, then the presumption applies and the burden of proof shifts to the person alleged to have committed undue influence. If a Petitioner meets the burden of proof, the Court must declare void the portions of the Will found to have been subject to undue influence, which may not include the entire Will. Undue influence is the primary reason Wills or Trusts are revoked and deemed invalid.

For over 27 years, Fort Lauderdale probate attorney Mark R. Manceri has represented people in probate matters. Contact the firm through through its website or at (954) 491-7099 to schedule your initial consultation.

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