We have a huge elderly population in Florida, and some of these elderly people are vulnerable due to disability or loneliness. Unscrupulous people often take advantage of the elderly, particularly those known to have substantial assets. There are circumstances in which an individual may unduly influence an elderly person to change his or her will or other estate planning instruments. Under Florida law, it is possible to challenge a will or other estate planning instrument changed due to undue influence. If you believe a loved one was unduly influenced to disinherit you, the experienced Ocala probate litigation attorneys of the Dean Law Firm may be able to help.Recovering Your Inheritance
There are a number of grounds under which you can challenge the validity of a last will and testament or another testamentary document. One of these grounds is undue influence. In order to invalidate a will based on undue influence, you’ll need to show that someone used duress, fraud, coercion, or fraudulent contrivances in changing the document, so much so there was a destruction of the testator’s free agency. Most of the time, undue influence isn’t used openly in front of other people, so usually, this needs to be shown through circumstantial evidence of deceptive conduct.
Generally, competency is not the defining issue in an undue influence case. However, if the testator’s health and cognitive faculties are declining, he may be susceptible to undue influence. Any case that involves allegations of undue influence needs to be decided according to its particular facts. Often you’ll need to ask for medical records, financial records, and any records about the estate planning undertaken by the testator.Proving Undue Influence
Any gift procured because of undue influence can be voided or set aside through a will contest. The doctrine of undue influence is based on the idea that a testator is induced to execute a last will and testament that seems to be his, but in which someone else’s will is substituted for that of the testator. Usually, undue influence isn’t openly admitted to or even shown in front of other people, so it usually requires proof with indirect evidence based on the facts and circumstances surrounding the making of the will.
The general rule is that if there is a mutual confidential relationship between the testator (maker of the will) and the recipient of a gift in a testamentary document, it is prima facie void because of that relationship, and it is presumed that the gift was gotten through undue influence.
Under Florida Statute section 733.107(2), in will contests, the proponent of the will has the burden of proof to make a prima facie showing that it was properly executed and attested. It is possible to submit a self-proving affidavit that meets certain requirements to fulfill this burden. The person challenging the will then has the burden of establishing the grounds on which he or she is opposing probate or revocation of the will.
In litigation, there are seven factors that help the court decide whether the beneficiary of the will engaged in undue influence or active procurement. These factors are: (1) the beneficiary was present when the will was executed, (2) the beneficiary was present when the testator said he or she wanted to make a will, (3) the beneficiary recommended a particular attorney draft the will, (4) the beneficiary knew what the will said before it was executed, (5) the beneficiary instructed the attorney on preparing the will, (6) the beneficiary secured witnesses to the will, and (7) the beneficiary kept the will safe after it was executed. These aren’t exclusive factors to establishing active procurement. Rather they’re considered warning signs that suggest active procurement. Other red flags include isolating the person making the will, disparagement of family members, and where the decedent and beneficiary were unequal in mental acuity.Consult an Experienced Probate Litigation Attorney in Ocala
Under Florida law, it is not only wills but also inter vivos transfers that are subject to challenge under grounds of undue influence (as well as fraud, duress and overreach). If you believe a loved one in Ocala was subject to undue influence in the making of his will or trust or in making an inter vivos transfer, the lawyers at the Dean Law Firm may be able to assist you. We represent people throughout Florida in The Villages and Crystal River, as well as in Levy, Citrus, Marion, Lake, and Sumter Counties. Call us at 352-387-8700 or contact us through our online form.