When a would-be heir challenges the validity of a Will claiming that it was signed under undue influence, it is up to that heir to prove the person benefiting from the new estate plan engaged in “active procurement” of the Will. What that means, and how you prove it, has been a topic hotly debated in the Florida probate courts for years. The Carpenter factors can help you understand what active procurement looks like, and what you will need to prove to show that it happened.
Establishing the Presumption of Undue Influence
Florida probate law recognizes the fact that a person’s heirs and beneficiaries may not have all the information about what happened in their loved one’s final years. When those events include an unexpected change to the person’s estate plan, it can create a question of whether someone had “undue influence.”
An undue influence claim is one of the most common types of Will challenges in probate litigation cases. It is also one of the most complicated. The process often involves a “burden shifting” provision, which creates a presumption (assumption) that undue influence occurred as long as the petitioners establish three things:
- The respondent would receive a substantial benefit under the Will or trust;
- That beneficiary held a confidential relationship with the deceased; and
- They were active in procuring the Will or trust.
Once those three elements are met, the burden of proof shifts to the beneficiary to prove there was no undue influence on the deceased to sign the new estate plan.
The first two elements – the substantial benefit and confidential relationship between the beneficiary and the deceased – are relatively straightforward. But understanding what counts as “active procurement” requires a dip into Florida’s legal history.
The Carpenter Factors for Active Procurement
In 1971, in a case called In re Estate of Carpenter, the Florida Supreme Court gave probate litigation attorneys and their clients a list of factors to show that the substantial beneficiary actively procured the challenged Will or trust:
- Presence of the beneficiary at the execution of the Will;
- Presence of the beneficiary on those occasions when the testator expressed a desire to make the Will;
- Recommendation by the beneficiary of an attorney to draft the Will;
- Knowledge of the contents of the Will by the beneficiary prior to execution;
- Giving of instructions on the 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.
This list was never intended to be exclusive or exhaustive. There are cases of undue influence that don’t fit into these 7 buckets, and not every case will have every one of these factors. However, the Florida Supreme Court offered this list as an illustration of what active procurement for undue influence looks like.
Going Beyond the Carpenter Factors
In the years since Carpenter, Florida courts have added to the list of factors that can prove active procurement for undue influence, adding three more factors:
- Isolating the testator and disparaging family members (such as moving the deceased into their home and intercepting their mail)
- Mental inequality between the decedent and the beneficiary (beyond mental incapacity, which is a separate reason to contest a Will)
- Reasonableness of the Will or trust provisions (such as giving substantial property to a stranger or disinheriting children in favor of a recent acquaintance).
These additional factors should be read the same way as the Carpenter factors. No one factor is necessary or enough to prove undue influence, but they all tend to show the substantial beneficiary took steps to exert undue influence on the deceased. With these additions, you may hear your probate litigation attorney talk about there being 10 Carpenter factors, even though only 7 came from the original case.
The Limits of the Presumption of Undue Influence
It is important to remember that a legal presumption assumes something is true, but that assumption can be disproven if enough evidence is presented to show the Will is valid.
For example, the question of the deceased’s mental strength or vulnerability can swing both ways. In one case, Elson v Vargas, many of the Carpenter factors suggested there had been undue influence, but witnesses testified the deceased was “a strong-willed woman who wanted things done her way.” The Court found that the Will was valid and the presumption of undue influence had been rebutted (countered) with evidence that the deceased knew what she was doing when she signed the Will.
In addition, Florida has recently developed a “dutiful child exception” which assumes that children will help their parents to make changes to their estate plans, according to their wishes, rather than through undue influence. This can be the case even when the Will favors one child over her siblings, or where that child was the one responsible for communicating with lawyers and driving his parents to sign the Will. This does not mean that an undue influence case in these circumstances can’t succeed, but it does mean that the presumption of undue influence may be difficult to establish or uphold.
You can’t challenge a Will just because its terms appear unreasonable. The thing making the Will unreasonable must be linked to the undue influence exerted by the substantial beneficiary. In another case, Newman v Brecher, the only evidence of undue influence was the changing of the Will itself to reduce the amount given to several nephews in favor of awards to the deceased’s two primary caregivers (who were also a niece and nephew). The Court said that wasn’t enough to show there had been active procurement for undue influence challenges to the Will.
Get Help with Undue Influence Claims in Florida Probate Court
Filing or defending against a Will challenge based on undue influence can be complicated. At Harrison Estate Law, P.A., our experienced estate and probate team can help you investigate whether there was active procurement for undue influence, or if an exception applies that justifies the beneficiary’s actions. Contact us here or call 352-559-9828 to get help today.