While competency is not the primary issue in a case of undue influence, a testator who suffers from declining health may be more susceptible to undue influence. The determination of same is decided when the making of the Last Will and Testament was contrary to the testator’s intent. Because undue influence challenges cannot be brought until after the testator’s death, extensive discovery is necessary. Each case involving allegations of undue influence must be determined on its own facts. Estate of MacPhee, 187 So. 2d 679 (Fla. 2DCA 1966). It is not unusual that the only evidence of undue influence is circumstantial, as the conduct that amounts to undue influence (if present) is not normally seen by others. To create a presumption of undue influence there must be a finding of a confidential (or fiduciary) relationship, the active procurement of the will by the beneficiary and a substantial benefit to that beneficiary. In re Estate of Carpenter, 253 So. 2d 697 (Fla. 1971). It is almost always the “active procurement” which is at issue in an undue influence case. There are seven (7) factors to be considered by the courts, which have been written about extensively on this site.
In Florida, the presumption of undue influence is a rebuttable one. F.S. §733.107. Once proper execution of the Will(or trust) has been established, the individual challenging the documents has the burden of presenting evidence to prove the elements of undue influence by a preponderance of the evidence. Unlike a criminal case, where the government must prove its case to the exclusion of any and all reasonable doubt, the burden of proof is the lesser standard of a preponderance. If the case of undue influence has been established by the contestant, the burden of proof then shifts to the proponents of the will, who must come forward with evidence that the will (or trust) was not the result of undue influence. Diaz v. Ashworth, 963 So. 2d 731 (Fla. 3d DCA 2007).
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