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Under Florida law, there are protections in place to keep people with bad intentions from manipulating someone into devising or gifting all or a portion of their estate to the bad actor. If someone’s Last Will And Testament is proven to have been hijacked by “undue influence” then that Will can be voided by a Florida Probate Judge.

What is Undue Influence Under Florida Law?

Undue influence is proven through the presentation of evidence, including documents and witness testimony, that the person making their Will was swayed in ways that include:

Coercion; or
Artful contrivances.

And, this behavior must be shown to have:

Destroyed the free agency and willpower of the testator; and
the resulting Last Will is the product of the will of another, not that of the decedent.

“When a Will is challenged on the grounds of undue influence, the influence must amount to over persuasion, duress, force, coercion, or artful or fraudulent contrivances to such an extent that there is a destruction of free agency and willpower of the testator.” Raimi v. Furlong, 702 So.2d 1273, 1287 (Fla. 3d DCA 1997).

Playing Favorites Among Beneficiaries Isn’t Undue Influence

It’s key in any Will contest based upon undue influence that the “free agency or willpower” of the deceased person have been “destroyed.” If the person who wrote the Last Will and Testament has affection, love, or emotional attachment for one specific beneficiary and chooses to honor that person with a disproportionate amount of their property in an inheritance, then there is no “undue influence” which will void that Will. A desire to gratify the beloved beneficiary by the testator may not seem fair to the other beneficiaries, but it doesn’t mean that there was “undue influence” by that favorite – Last Will and Testaments don’t have to distribute property equally or in ways that the family members think is just.




The Case of Lonely Daisy, Caretaker Doris, and the Cut Out Cousins

Here’s an example out of the Florida courts. In the case of Heasley v. Evans, 104 So. 2d 854 (Fla. Dist. Ct. App. 1958), Doris Smith inherited the bulk of Daisy Clarke’s estate when Daisy died at the age of 84 years; relatives of Daisy filed a lawsuit in the Florida probate court alleging undue influence by Doris over Daisy.

They lost. Here’s why.

Almost ten years before her passing, Daisy introduced herself to Doris using a letter of introduction she got from a mutual friend. The two liked each other, and a friendship grew between them. Doris helped Daisy with things like personal grooming; things went so far that Daisy moved into Doris’ house. Daisy and Doris even drew up a written agreement between them: a contract that stated Daisy would pay Doris and make her the major beneficiary of her estate if Doris would quit her job at a jewelry store to stay home and be Daisy’s caretaker for the rest of Daisy’s life. The contract was Daisy’s idea.

Every relationship has its ups and downs, of course, and Daisy and Doris got into a big brouhaha a couple of years later. The crux of it was Daisy’s worry that Doris was going to get married and abandon her. There was even a lawsuit filed to set aside their contract – Daisy filed it. Daisy also wrote a new Last Will that cut Doris out as a beneficiary.

Daisy felt bad later; she renewed her friendship with Doris and while they never signed another contract between them, they were friends again. Doris did get married: she moved away to New York and Daisy went to visit her there over Christmas.

By the time that Daisy passed away, she had written 5 different Wills: three of them were executed after she reconciled with Doris. Each time she wrote one of these Wills, Doris’ share of Daisy’s estate increased. The final Will left almost everything to Doris and Doris’ son and a very small amount to be shared among Daisy’s collateral heirs.

These heirs were Daisy’s first, second, and third cousins — they were not close to her. They wanted to have her Last Will tossed out because they argued that Daisy was “… physically frail, lame, poor of eyesight, senile, forgetful, flighty, penurious, and possessed of but little knowledge of the extent and nature of her possessions.” They pointed the finger at Doris, arguing that it was Doris who took care of all of Daisy’s personal affairs, including things like paying her bills and checking her mail.  She had to have unduly influenced things!

Doris fought back.

She pointed out that it was Daisy, not Doris, who sought her out to be friend and caretaker. It was Daisy, not Doris, who proposed their contract, who ended the contract, and who worked to re-institute their friendship afterwards.  Doris had evidence to show that Daisy was well aware of what she owned as property, as well as who her relatives were — she may have been physically frail but she was mentally alert and aware.

The probate court found that Daisy not only had the testamentary capacity to make her Last Will and Testament, but that there was no evidence that Doris exerted any type of undue influence over Daisy in how that Will was written. Even though the court found that Doris was “unhesitatingly willing to be the object of Daisy’s bounty” and that Doris “got less in return than what she bestowed” and the cousins had reason for “suspicion and conjecture” about Doris’ motivations regarding Daisy — there was no evidence that Daisy’s free agency or willpower had been destroyed.

The bottom line, according to the court, was that “Daisy knew what she wanted and what she was doing.

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

If you suspect your parent, grandparent, or loved one, was a victim of undue influence over how their Last Will and Testament was written, you’ll need to be ready to formally challenge that Will in the Florida Probate Court, Specifically, a lawsuit challenging the Last Will and Testament must be filed. As the person challenging the Will, it will be your responsibility of proving your case, that there was undue influence, with admissible evidence. An experienced Florida probate lawyer can help you decide if you should proceed, and what evidence can be gathered to win your case. A successful Will contest based upon undue influence results in the questioned Last Will being tossed out by the Probate Court.

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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