Attorneys Stephen Korshak and Lee Karina Dani

Court finds undue influence, invalidates will

In a recent case, Blinn v. Carlman 2015 WL 1223665 (Fla.App. 4 Dist., 2015), the Florida Court of Appeals invalidated a will on the basis of undue influence.

Facts of the case

In August 2007, the testator, then 82 years old married his fourth wife. No family or friends attended the wedding. At that time, the testator had been experiencing a deterioration in his mental health for at least two years and cognitive difficulties from as early as 2006, including progressive dementia characterized by inappropriate behaviors and paranoid beliefs.

From 2005/2006 until his death in 2012, the testator made a series of financial decisions that caused his business to decline. He participated in mail-away scam lotteries in foreign countries, maintaining he was winning but in fact never recovering any money. In June 2011 a circuit court determined that he was totally incapacitated and appointed his daughter as guardian.

Also in the years following the testator’s marriage, communication with his daughter dropped off and his relationship with his son was curtailed. There was testimony that if the wife answered the phone when the son called, she would hang up immediately. There was also evidence that the wife had repeatedly accused the daughter of stealing from her father and making the father believe it.

The will in question was executed in April 2008 under suspicious circumstance. Two lawyers were present at the time of execution, one referring lawyer and one who had drafted the will. The referring lawyer was not experienced in wills and was a social friend of the testator and his wife. The referring lawyer had also received a loan from the testator in 2007. The referring lawyer testified that he didn’t discuss the will with the testator or his wife and that he gave no legal advice. The drafting lawyer said he had no interaction with couple until the day the will was signed and, contrary to the referring lawyer’s testimony, that it was the referring lawyer who gave him instructions on how to draft the will and to revoke the 2011 power of attorney.

A month after will was drafted, the testator’s wife sent to the drafting lawyer letters from a doctor stating that she and her husband were of sound mind. She requested that the letters be attached to their respective wills. The letters were nine months old at the time.

The April 2008 will differed substantially from the testator’s prior will. Under the earlier will, the testator’s entire estate was left to his daughter with his granddaughter named as the alternate beneficiary. Under the new will, the entire estate was to pass to the wife and to a recently formed charity. The charity was subsequently dissolved in August 2008, four months after its creation, and the assets distributed to an out of state beneficiary.

Undue influence

When a will is challenged on the basis 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'” such that the will does not represent the desires of the testator but rather that of another person.

Based on the circumstances surrounding the execution of the April 2008 will, the court held that it was a product of undue influence and invalidated the will.

Speak to an attorney

If you believe a will is the product of undue influence, or have been accused of undue influence, it’s important to speak to an estate planning lawyer as soon as possible.