There are several grounds why a Florida court may decide not to probate a will:
- There may be a subsequent will
- The testator may not have testamentary capacity to make a will
- The will may not have met proper formalities such as having multiple witnesses
One common ground for denying probate is called “undue influence.” In short, beneficiaries who have been cut out of a will or have been chosen to receive less than that what they would normally get sometimes argue that the decedent wouldn’t have made that change unless someone in a position of trust used pressure to get them to change the normal distribution.
Beneficiaries and others can also challenge trust agreements and other legal documents based on undue influence.
General requirements to prove undue influence
Florida statute 733.107 provides that the person who proposed that the will be admitted to probate bears the burden to show the will was properly executed and attested to. Once this burden is met, the burden to show undue influence falls on the person challenging the will. The challenger must prove that the person who they complain exercised undue influence:
- Had a confidential relationship with the testator – the decedent
- Obtained a substantial interest in the testator’s estate
- Actively worked to get the testator to prepare the will or trust document
A confidential relationship generally means that the testator trusted and had confidence in the person accused of undue influence. Many family members have a confidential relationship with their relatives. Lawyers, guardians, trustees, and others may also have a confidential relationship
Active work requirements
Undue influence is essentially fraud. The person who exercised undue influence usually uses some sort of physical or mental force to get the testator to write the will or legal document in ways he/she normally wouldn’t have.
The factors courts consider showing, according to recent case law, that the person in trust actively worked to get the testator to make the will or new will include
- The person’s presence at the will’s execution. Testators normally prepare a will on their own. The presence of a beneficiary at the will’s execution is a red flag that something’s not right.
- The person’s presence when the testator, the person making a will, indicates a desire to prepare a will
- The influencer recommends that a lawyer prepare the will. Testators also normally choose their own lawyers. It’s not standard for a beneficiary to select the attorney.
Additional active requirements
- The undue influencer knew what would be in the will before execution. Beneficiaries normally don’t find out who the testator chose to give the assets until after the testator dies.
- The undue influencer gave the lawyer instructions about the will’s provisions. Experienced lawyers generally review the terms of the will with only the testator.
- The person obtained the witnesses to the will. Normally, the lawyer’s staff sign as witnesses.
- The influencer keeps the will after execution. Usually, the testator will take possession of the will. Sometimes, the lawyer who prepared the will keep it in a safe-deposit box. It’s unusual for a beneficiary to take possession.
Other factors lawyers discuss with ousted beneficiaries
- The person accused of undue influence isolated the testator from family and normal beneficiaries. Most testators want to see their children, nieces, and nephews, siblings, other relatives, and friends.
- The person accused of influence complained about the expected beneficiaries. This is a sign that a person is placing pressure on the testator to prepare a document that omits expected beneficiaries.
- Courts will also examine whether the will’s provisions were normal or unexpected. The ability of the influencer to exert pressure will also be reviewed.
False assumptions in undue influence cases
Just because a beneficiary didn’t get what he/she expected is not conclusive. Testators are not required to give their assets to anyone in particular. Often, a testator has good reasons for leaving someone out of a will or for giving them less than that person expected. For example, a testator may have already given those personal assets by gift. The testator may fell that the beneficiary objecting to the will already have enough funds
Often, the testator may feel that the person's family members didn’t take care of him/her while the person in a confidential relationship did take the time and effort to enjoy the testator’s company. The person accused of undue influence may have been the person who took the testator to his/her doctors.
How to prove undue influence
An experienced probate and wills lawyers will work to prove the necessary factors by:
- Reviewing the relationships of the testator with the person objecting to the will.
- Conducting discovery including depositions of the person accused.
- Cross-examining the person accused of undue influence in open court.
- Showing that the beneficiaries did try to talk to or and spend time with the testator. Beneficiaries help their case if they can show they phoned the testator, drove to his/her residence, sent letters, and made other efforts to see their loved one.