Question: I think my mother's boyfriend has convinced her to do a new will and leave everything to him. The old will leaves her assets to her children. Can I challenge the will?
Answer: It appears you feel the boyfriend is exercising "undue influence" over your mother. A will procured by undue influence or part of a will which is the result of undue influence is void. A will which devises assets to a friend rather than family is not automatically considered the result of undue influence. In fact, many such wills have been upheld by Florida's courts.
The leading Florida case on undue influence explains that mere influence is not enough to void a will. Influence is undue if it is "over persuasion, duress, force, coercion or artful or fraudulent contrivances to such a degree that there was a destruction of free agency and willpower.
The person for whom the will is created is known as a testator. A claim for undue influence must generally be pursued after death of the testator in probate. A second claim can also be pursued against the person exercising undue influence for the tort of intentional interference with expectancy. That claim, too, must be pursued after the testator's death. The courts emphasizes that a testator can always change a will so that filing suit before death is premature.
Undue influence can be presumed where three principal factors exist. Those factors are:
- The influencer is a substantial beneficiary under the will;.
- The influencer had a confidential relationship with the decedent;
- The influencer was involved in getting the will completed.
If all of the above factors are present, undue influence is presumed.
The requirement of being a substantial beneficiary does not always have to be met. If the influence results in a substantial beneficiary, it can also be undue. In one case, undue influence was found where the director of a church influenced a testator to benefit his church and his deices.
Confidential relationship is interpreted broadly. It includes technical fiduciary relations such as doctor/patient, attorney/client and minister/parishioner. It also extends to informal relations where one person trusts and relies on another.
The third factor, actively obtaining the will, covers a lot of action. The leading Florida case identifies seven factors which evidence someone actively obtained the will, although the list is not exclusive. Those factors are:
- Presence of the beneficiary at will signing;
- Presence of the beneficiary when the testator expressed the desire to make a will;
- Recommendation or selection of an attorney to make the will by the beneficiary;
- The beneficiary knows the contents of the will before it is signed;
- The beneficiary gives instructions to the attorney drafting the will;
- The beneficiary provides witnesses to the will; and
- The beneficiary keeps the original will after it is signed.
The presumption of undue influence does not arise where the influencer is the spouse. Florida cases explain that if the spousal relation is not excluded from the presumption of undue influence, the presumption would arise in almost every case in which a spouse is a substantial beneficiary. That does not mean that a spouse cannot exercise undue influence. It means undue influence of a spouse must be proven by the opponent of the will rather than relying on the statutory presumption. That proved very difficult prior to the statutory change in 2002.
Until 2002, a person challenging a will for undue influence had the burden of proving undue influence. In 2002, Florida statutes were amended. Now, once a presumption of undue influence is raised, the proponent of the will must prove that the will was not the product of undue influence.
When the testator is mentally and/or physically weak, undue influence is easier to prove. Courts have noted when a person is extremely week mentally and physically, it takes little to influence estate planning decisions. In the case of In Re: Auerbacher's Estate, one Justice stated "There is nothing more flexible that a sick mind."
There is one caveat to challenging a will on undue influence grounds. If you are challenging probate of a will you must renounce the benefits you would receive under the will. Fortunately, the recent cases have allowed the renunciation to be conditioned upon successfully challenging the will.
Cases of undue influence are difficult and complex. Evidence is critical and the parties usually have much to gain or lose. In these cases, it is essential to retain an experienced attorney.
By: William G. Morris, Esquire
William G. Morris is an attorney with offices at 247 North Collier Boulevard on Marco Island, Florida. His practice covers a broad range of subjects, including civil litigation, real estate, business and corporate law, estate planning and probate, domestic relations and contracts. He writes this column periodically with respect to legal matters that frequently affect non-lawyers. The information contained in this column is not intended as legal advice and, of necessity, is generalized. For questions about specific circumstances, the reader should consult a qualified attorney.
Questions for this column can be sent to: William G. Morris, e-mail: wgmorrislaw@embarqmail.com or by fax, (239) 642-0722 or
The Marco Island Eagle
Other articles of interest can be viewed at our website, www.wgmorris.com.
