Attorneys Stephen Korshak and Lee Karina Dani

What is undue influence?

by | Aug 28, 2018 | Heirs & Beneficiaries |


In Florida, a will may face a challenge if allegations arise that all or some of its provisions stem from undue influence on the testator. The law surrounding this issue contains many complexities, but it can help to read through a basic outline of relevant concepts.

Typically, these allegations happen when a testator leaves a disproportionate amount of assets to someone who is not a relative. Family members may claim that the testator would not have made such a provision unless the beneficiary exerted undue influence.

General definition: Undue influence

Generally, undue influence occurs when another person exerts pressure to the extent that his or her will takes over the will of the testator. Provisions that may be unfair or callous are not, in themselves, evidence that the will does not represent the true intentions of a testator.

Factors indicating undue influence

When a will enters probate, if it complies with technical requirements, the court presumes that it is valid. Challengers can defeat this presumption and instead create a presumption of undue influence if they prove that the influencer benefits substantially from the will, had a confidential relationship with the testator and took active steps to aid the creation of the will.

A confidential relationship usually exists when the influencer is in the position to exert pressure on the testator. The relationship can be a professional one or a close, personal one. A common scenario arises when the beneficiary was the testator’s caretaker, making the testator physically and emotionally dependent on him or her.

Florida courts use a set of factors to determine whether the alleged influencer was active in the procurement of the will. These include whether the beneficiary was there when the testator signed the will or discussed making it, whether the beneficiary knew of the content of the will before signing, whether he or she suggested the witnesses or the attorney who drew up the will and whether the beneficiary kept the will after signing.

Courts also examine how reasonable the provision was and whether there were factors that specifically made the testator susceptible to influence by the beneficiary. Evidence that the beneficiary isolated the testator or turned him or her against relatives can also be relevant.

Shifting the burden of proof

Once the challenger brings enough proof for the court to find a presumption of undue influence, the burden of proof shifts. It will be up to the proponent of the will to prove undue influence did not occur.