Posted By Larry Tolchinsky on May 26, 2012
An attorney preparing a Florida Will must be aware of the law dealing with the testator’s intentions being replaced by the intentions of another. A Florida Will can be declared invalid if it can be proved that it was procured through fraud or undue influence. F.S. 732.5165.
The Florida Supreme Court addressed the issue of undue influence in Estate of Carpenter, 253 So.2d 697 (Fla. 1971). It ruled that if a challenger to the Will establishes that a substantial beneficiary occupied a confidential relationship with the testator and was active in procuring the Will, a rebuttable presumption of undue influence arises. Evidence that might indicate active procurement includes that the beneficiary;
- Was present when the testator spoke of wanting to make a Will;
- Recommended an attorney to draft the Will
- Instructed the attorney on how to prepare the Will;
- Knew the contents of the Will before it was executed;
- Obtained the witnesses to the Will;
- Was present when the testator executed the Will; and/or
- Arranged for the safekeeping of the Will after its execution.
To avoid any question regarding undue influence of a beneficiary, an attorney should meet alone with the client at some point to ascertain whether the client’s decisions have been heavily influenced by another and should take precautions to avoid any appearance of such influence. For example, the lawyer should take instructions from the client only, if possible, and should consider having only the client and witnesses present when the Will is executed.