Fort Myers Family Legacy Trusts & Undue Influence Lawyer
One of the most heavily litigated issues in probate or trust litigation is the allegation that some party exerted undue influence over the testator or settlor in the creation of a will or trust. If undue influence is proven, specific terms of a will or trust, or the entire document, may be declared invalid. Through an influential decision known as the Carpenter case, Florida law has set out several factors and criteria that help decide an undue influence case. The lawyers at Kuhn Law Firm, P.A. in Fort Myers are well-versed in probate and trust litigation in Florida courts throughout Lee, Collier and Charlotte counties. Our lawyers act aggressively in litigation to protect our clients’ rights and persuade the court regarding the presence or absence of undue influence in a particular probate or trust administration. Read on to learn more about undue influence in Florida probate and trust litigation, and contact Kuhn Law Firm, P.A. if the issue of undue influence has arisen in your probate or trust administration.
Confidential Relationship and Active Procurement
In order to prove undue influence, a party must be able to prove that a confidential relationship existed between the maker of the will or trust and the person who exerted the undue influence. Once established, the party must also prove an “active procurement” of the change in the will.
Of the two prongs of the Carpenter test that must be proved to show undue influence, proving the existence of a confidential relationship is generally the easier of the two to accomplish. This term is read very broadly. It can include a legal or fiduciary relationship, a personal relationship, or any situation where one person has a strong influence on another, or where the will or trust maker relies strongly on the other person. Since a confidential relationship is not that hard to prove, most undue influence litigation focuses on the other prong of the Carpenter test – active procurement.
The Carpenter court laid out seven criteria or factors that can be used to show active procurement, or active steps taken on the part of someone to influence the drafting or changing of a will or trust. These factors are:
- The beneficiary accused of undue influence was present at the execution of the will
- The beneficiary was present when the testator expressed a desire to make a will
- The beneficiary recommended a particular attorney to draw up the will
- The beneficiary knew about the contents of the will before it was executed
- The beneficiary gave instructions to the attorney drawing up the will regarding the will’s preparation
- The beneficiary is the one who secured the witnesses to the execution of the will
- The beneficiary took charge of the safekeeping of the will after it was executed
Establishing the Presumption of Undue Influence
Showing the presence of a confidential relationship, along with the presence of one or more of the Carpenter factors of active procurement, creates a presumption that undue influence was involved in the drafting of the will. It is then up to the person defending the will to provide some reasonable explanation as to why those factors exist but undue influence was not involved. If the party cannot do this, then the judge can void part or all of the will based on undue influence.
Proving Undue Influence by a Preponderance of the Evidence
If the party defending the will is able to rebut the presumption of undue influence, the burden falls back on the party challenging the will to prove the existence of undue influence by a preponderance of the evidence. This means that at the conclusion of the trial, the evidence weighs more heavily in favor of the presence of undue influence. As lawyers extensively experienced in probate and trust litigation, Kuhn Law Firm attorneys have the skills and abilities to fully represent your interests at trial whether your are pursuing or defending a claim of undue influence in the drafting of a will or trust.
Help is Available for the Resolution of Undue Influence Disputes in Fort Myers, Naples and Port Charlotte
For skilled and knowledgeable representation in an undue influence case regarding probate or trust litigation in Lee, Collier or Charlotte County, contact Kuhn Law Firm, P.A. at 239-333-4529 to consult with one of our able and experienced Fort Myers estate litigation lawyers.