Families are often a source of great joy in our lives, but there may be times when family matters may cause us unnecessary and unpleasant grievances. This is especially true when it comes to money. Older family members pass away, at times leaving a large estate behind for the survivors to argue over. The manner of distribution of a decedent’s estate can be determined by a valid will or, when none exists or a will is considered invalid, by the laws on intestacy.
There are circumstances under which a probate court may set aside a seemingly valid last will and testament, to the happiness of some and to the disdain of others. Forged wills and those created by minors are prime examples of when a court will not honor a decedent’s will. A more complicated and less obvious way of doing so is by showing that the testator was under undue influence when he or she created their will.
The Florida Supreme Court has clarified that, for conduct to amount to undue influence, the mind must be so controlled or affected by persuasion or pressure, artful, or fraudulent mechanisms, or by the insidious influences of persons in close confidential relations with the testator, so that he cannot act intelligently, understandingly, and voluntarily, but is subject to the will or purposes of another.
When would such an influence be affected on someone as to amount to undue influence? Although there is no one answer, courts look at certain factors to aid them in the search for undue influence. These include:
- presence of the beneficiary at the execution of the will or other instrument;
- presence of the beneficiary on those occasions when the testator expressed a desire to make a will;
- recommendation by the beneficiary of an attorney to draw the will;
- knowledge of the contents of the will by the beneficiary prior to execution;
- giving of instructions on preparation of the will by the beneficiary to the attorney drawing the will;
- securing of witnesses to the will by the beneficiary;
- safekeeping of the will by the beneficiary subsequent to execution.
As mentioned, a finding of one or more of these factors does not mean that a testator will automatically be found to have been unduly influenced. These are conditions a court will look to in makings its determination, based on the evidence before it, of whether undue influence occurred.
If you’re in doubt about your rights or need representation relating to a will or other gift, contact a Fort Lauderdale probate litigation lawyer at (954) 440-0901 to assist you with your dispute. The Fort Lauderdale probate litigation lawyers at The Carlin Law Firm, PLLC regularly represent beneficiaries and others entitled to property with prosecuting and defending claims for undue influence.