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In cases of undue influence, it is alleged that someone (a tortfeasor) has taken advantage of someone else (a testator — one who executes a Will or other estate planning document) to get themselves written into the testator’s estate plan, potentially procuring tremendous sums of money, properties, and other items.  It is something that the testator probably would never have done otherwise, and often is inconsistent with the testator’s prior existing estate plan, if any.

Florida courts have defined undue influence as “over-persuasion, duress, force, coercion, or artful or fraudulent contrivances to such a degree that there is destruction of the free agency and will power of the one making the will.” Williamson v. Kirby, 379 So.2d 693, 697 (Fla. 2d DCA 1980.)

However, not all influence is “undue,” and not every close relationship resulting in a large devise to a beneficiary is wrong.  As the Williamson court explained, “mere affection, kindness, or attachment of one person for another may not of itself constitute undue influence.” Williamson ,379 So.2d at 697.

For those that are suspicious of the circumstances surrounding the execution of a Florida Last Will and Testament, many factors need to be investigated before the time, expense, and emotional toll of an adversarial will contest in a Florida probate court is filed.  One of the first factors that any Florida probate lawyer will consider is the relationship itself, and if it meets the legal standard of a “confidential relationship.”



1. What is a Confidential Relationship?

A confidential relationship is a close, personal bond between two people; in a probate situation, it is one where the relationship between the grantor and the beneficiary was one of trust and confidence: “… where confidence is reposed by one party and trust accepted by the other.See, Estate of Brock, 692 S0. 2d 907 (Fla. Dist. Ct. App. lst Dist. 1996).

All sorts of relationships can be “confidential relationships.” Doctor-patient and lawyer-client relationships are considered to be confidential relationships, as well as fiduciary ones. Friends can enjoy confidential relationships. Parents and children, grandparents and grandkids, uncles and nephews … all sorts of family members may have confidential relationships.

The key to making any relationship a “confidential relationship” is one person trusting the other, and having confidence in them that they are worthy of that trust. Being a part of a family doesn’t automatically mean that a confidential relationship exists.

Think of it this way: in the Star Wars movies, Darth Vader and Luke Skywalker were father and son, but there was no such confidential relationship there. Conversely, Vito Corleone and Michael Corleone were also father and son in the Godfather movies, and they definitely had a confidential relationship because trust and confidence was shared between them.

2. Confidential Relationship and Undue Influence

Undue influence is a type of fraud. In order to invalidate a will, it must be shown that the confidential relationship was abused and that the testator’s act in making the will was not the product of his or her own desires and wants, but instead was overriden by the other party in the confidential relationship. The person making the will must have been “controlled” or persuaded, pressured, or conned into drafting that suspect will.

Here’s a case where a confidential relationship involved undue influence. In the case of Estate of Lightfoot, 433 So. 2d 607 (Fla. Dist. Ct. App. 1983), Beulah Lightfoot’s Last Will and Testament was successfully challenged and ordered revoked by a Florida probate judge on the grounds of undue influence (and his order upheld on appeal). Here, Beulah Lightfoot’s estate of around $800,000 left all but a tiny bit to her son, Bain Lightfoot, who was also named as personal representative.

Her daughter Nici got $10,000 under the will, and there were a few other minor bequests. So, Nici filed a Will Contest.

First, it was shown that there was a confidential relationship between mother and son. After his father died, Bain and his mother lived together in her home. No one else resided there. The day before she died, she gave him $6,000.00. They were close and in a relationship where the mother had confidence in her son and trusted him.

Using the Carpenter factors, the confidential relationship between Bain and his mother was the first step used by Nici to show that the will offered into probate was based upon undue influence and should be disregarded. The court found:

1. Bain was present at initial conference and execution of the challenged will.
2. Bain was the one who suggested to his mother that her prior will was not legal in Florida and she needed a new one.
3. Bain made arrangements for his mother’s visits with her probate attorney and he took her to all her appointments at the lawyer’s offices.
4. Bain wrote most of a document that gave an overview of what the new will would have in it.
5. Bain was with his mother in all the conferences over the will, as well as when his mother executed it. Bain told his mother’s lawyer that his father had died and that her will needed to be updated accordingly.
6. Bain and his mother shared access to her safety deposit box where she kept this new will.

While the appellate court did find that Bain Lightfoot did provide evidence of a “reasonable explanation” for his “active role in his mother’s affairs” and that this was a “close case,” the reviewing court held that “… because reasonable men could disagree we are required to affirm the order revoking probate.”

Do You Suspect Undue Influence in a Loved One’s Will?

If you think that your mother or father, or your grandparent or other loved one, was a victim of undue influence then you need to be able to prove a confidential relationship existed between the person you think took advantage of their situation of trust and confidence with that person.

To right the wrong, you need to file a lawsuit challenging the Last Will and Testament, and you will have the burden of proving your case with admissible evidence. to prove your case. An experienced Florida probate lawyer can help you decide if you should proceed, and what evidence can be gathered to win your case.

If you have any questions about undue influence or contesting a Florida will, please do not hesitate to call us.

For more information check out our probate litigation page.


Picture of Larry TolchinskyDo you have questions or comments? Then please feel free to send Larry an email or call him now at (954) 458-8655.



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