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So far in our Summer series on undue influence cases in Florida probate courts, we have discussed at length:

For our final installment, we will explore one of the most difficult scenarios in which to prove the existence of undue influence — and successfully keep a will procured under dubious circumstances OUT of probate — will contests based upon alleged undue influence by a decedent’s husband or wife.

The standard of proof is no different in these cases; “undue influence” still must be clearly and convincingly proven with authenticated, admissible evidence that demonstrates conduct involving persuasion, duress, force, coercion, or artful or fraudulent contrivances that is so overwhelming that it destroys the free agency and independent willpower of the testator. See, In re Estate of Carpenter, 253 So.2d 697 (Fla. 1971).

Two golden wedding rings


Husband or Wife Will Contests

When a will contest involves a widow or widower as the challenged beneficiary — the one who is alleged to have unfairly benefited from influencing the decedent — the law does consider the fact that the decedent’s husband or wife is involved. Florida law honors and respects legally-valid marriage, and encourages the cultivation of the close bond that typically exists between spouses. It is expected that each spouse will favor the other in an inheritance. It is expected that each spouse can have a great amount of influence over the other; if a surviving spouse is left the entire estate, that’s not necessarily something that raises an automatic red flag to a probate judge.

The point here: when a couple is involved in a probate situation, and a family member or loved one seeks to challenge a will admitted to probate as being something that the probate judge should toss out and disregard (rule it to be “void”), the party contesting the will has a big task for providing facts to support their allegations. Anytime someone files a will contest to claim that the surviving spouse took advantage of their husband or wife in order to inherit what the deceased did not originally intend, then the contestant has a big fact presentation to mount.

Case #1: The “December Bride” – No Undue Influence

In the case of Tarsagian v. Watt, 402 So. 2d 471 (Fla. Dist. Ct. App. 1981), Sarah and Andrew first met in 1969 while Andrew was still married to his first wife. She died in 1972. After her death, Andrew moved into Sarah’s house: at that time, Andrew was 77 years old and Sarah was 62 years of age. Over the next five years, whenever Andrew got sick, Sarah took care of him. This made sense: Sarah had worked for years as a registered nurse.

In 1977, Andrew was in a car crash. He was severely injured. While he was in the hospital recovering from the injuries he sustained in the accident, his doctors discovered that Andrew had cancer (leukemia). When Andrew was discharged from the hospital, he returned to the home he shared with Sarah. A month later, they got married.

It wasn’t long after they wed that Andrew made a Last Will and Testament. He lived for another two years after that, and then Andrew died.

That same will was then made the subject of a will contest by beneficiaries who didn’t think that Sarah should get what this will decreed. They lost.

Using the Carpenter Factors (see our earlier post for details), the court found that evidence “overwhelming established” that Andrew was NOT unduly influenced by Sarah in the making of this will.

Calling the marriage of the 77-year-old and his 62-year-old bride a “December marriage,” the court explained that a husband’s intent to leave “his last companion” all his worldly goods should not be treated lightly. It is to be assumed that the person writing the will has the right to do as he chooses with his money and property.

The fact that his children from his first marriage are unhappy about the “December bride” inheriting their father’s estate alone is not sufficient to prevail in a will contest; there must be evidence that their father’s choice was not “freely made.”

Here, the children failed to meet that burden of proof. The evidence showed that Sarah’s only connection to the contested will was in accompanying her husband to his lawyer’s office and waiting outside while Andrew met with his attorney. This widow had no prior relationship with the lawyer; in fact, there was evidence that she had only met him briefly once prior.

After Andrew executed the will, the original was kept in Sarah’s safety deposit box — but that was something the couple shared; Andrew had no separate safety deposit box of his own in which to store it.

Finally, and perhaps most importantly, there was evidence that Sarah was not involved in any of Andrew’s financial affairs during their entire relationship, either before or after they were married. Andrew managed his money and property independently.

Case #2: The 4th Bride – Will Contest Successful

Compare, however, the recent case of Blinn v. CarlmannNo. 4D13-1156 (Fla. Dist. Ct. App. Mar. 18, 2015),  in which a daughter successfully challenged the purported will of her late father that left everything to his new bride. In this case, an 82-year-old man named Richard Blinn married his fourth wife in August, 2007. At that point, there was sufficient evidence to show that his mental faculties had been deteriorating for almost two years and his physical body was frail. He would continue to suffer from various physical ailments, as well as succumbing to dementia, until his death in 2012.

As early as 2007,  the year of his re-marriage, Richard began making unusual financial decisions. He started playing foreign country “lotteries” where he thought he was winning lots of money, though he never received any cash from it. He was being scammed somewhat regularly.

In 2011, things got so bad that his daughter Patty was appointed his plenary guardian by a Florida judge. Patty had run the family business with her dad for many years, and was familiar with the nature and bounty of her father’s estate.

However, by that time Richard had already drawn up a Last Will and Testament leaving everything to his new wife. That will was executed on April 2, 2008. Two lawyers were involved in the making of this will: the referring lawyer- a friend of Richard and his bride — was “loaned” money by the bride (and this sum had never been repaid), while the drafting lawyer testified that he never saw or met Richard and his bride until they showed up at his office on April 2, 2008, to sign their new wills. He testified that his law firm provided no prior legal advice to the couple, he had no knowledge of the decedent’s prior wills, and that it was the referring lawyer who gave him instructions for the preparation of the decedent’s will.

There was also evidence that the new bride had succeeded in driving a wedge between Richard and his kids. Before their marriage, father and children were close. However, no one in Richard’s family and none of his friends were invited to the wedding. And by doing things like blocking phone calls, etc., the bride succeeded over the years in keeping her new husband away from his children.

The court held that the children had successfully proven undue influence by the new bride over their deceased father, and the 2007 Will was adjudged to be void because it was the result of undue influence.

Was Your Parent the Victim of  Undue Influence in a Florida Last Will and Testament?

If you think that your father or mother or other loved one was victimized by their spouse and that the will admitted to probate (or sought to be admitted) may be the product of undue influence, then you may have a legal claim to assert in probate court as a will contest based upon undue influence.

The experienced Florida probate lawyers at Sackrin & Tolchinsky, P.A., are ready, willing and able to fight to preserve your loved ones’ testamentary intentions. If you have any questions about undue influence in a Florida will, call or email us today.

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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