Florida’s New Statutory Presumption of Undue Influence–Does It Change the Law or Merely Clarify?

– The Florida Bar

2003
https://www.floridabar.org/the-florida-bar-journal/floridas-new-statutory-presumption-of-undue-
influence-does-it-change-the-law-or-merely-clarify/

Unscrupulous people sometimes use undue influence to obtain gifts from persons who are
elderly, sick, or weak. To constitute undue influence, a person’s “mind must be so controlled
or affected by persuasion or pressure, artful or fraudulent contrivances, or by the insidious
influences of persons in close confidential relations with him, that he is not left to act
intelligently, understandingly, and voluntarily, but subject to the will or purpose of
another.”1
A ttorneys often allege undue influence to challenge the validity of a decedent’s will, trust,
or inter vivos transfer. Instruments or gifts procured through undue influence are void or
can be set aside.2
The party alleging undue influence in a lawsuit normally bears the burden of proving that
claim. If the burden is not met, the party loses.

… once the presumption arises, the burden of proof shifts to the alleged
wrongdoer to show that he or she did not procure the disputed instrument or gift
through undue influence. Although Carpenter arguably overstated the practical impact
of such a burden-shifting rule,68 The undue influence pendulum clearly has moved against
those who procure testamentary or inter vivos gifts from the elderly, sick, or weak through
misuse of confidential or fiduciary relationships.

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1 Florida Undue Influence - How is undue influence proven?
https://www.florida-probate-lawyer.com/litigation/florida-undue-influence/

Undue influence is also grounds for invalidation of pay-on-death beneficiary

designations and inter vivos (lifetime) transfers and gifts.
What is "undue influence?"
Undue influence is a cause of action used to challenge the validity …
over-persuasion, duress, force, coercion, or artful or fraudulent contrivances to
such a degree that there is destruction of the free agency and will power of the
one making the will. Heasley v. Evans, 104 So. 2d 854, 857 (Fla. 2d DCA 1958).
Undue influence is a species of fraud and is proven through circumstantial
evidence. Peacock v. DuBois, 90 Fla. 162, 164-165 (1925), 105 So. 321 (Fla.
1925) (“undue influence has been classified as either a species of fraud or a kind
of duress, and in either instance is treated as fraud in general.”). “Deceptive
conduct usually must be proved by circumstantial evidence and such
circumstances may, by their number and joint consideration, be sufficient to
constitute proof of fraud.” Cohen v. Kravit Estate Buyers, Inc., 843 So.2d 989
(Fla. 4th DCA 2003). As the Florida Supreme Court noted in Gardiner v. Goertner,
149 So. 186 (Fla. 1932), “undue influence is not usually exercised openly in the
presence of others, so that it may be directly proved, hence it may be proved by
indirect evidence of facts and circumstances from which is may be inferred. No
one of such facts or circumstances, when considered alone, may be of much
weight but when combined with other facts may be sufficient to establish the
issue.” Id at 385-386.
While competency is not the issue in a case of undue influence, a testator who
suffers from declining health or who has diminished capacity may be more
susceptible to undue influence. Each case involving allegations of undue
influence must be determined on its own facts. Estate of MacPhee, 187 So. 2d
679 (Fla. 2DCA 1966). Extensive discovery of estate planning records, medical
records, and financial records is usually required to prove an undue influence
case. As noted above, it is not unusual that the only evidence of undue influence
is circumstantial because the conduct that amounts to undue influence is not
normally seen by others.
How is undue influence proven?
Florida undue influence cases are proven through circumstantial evidence and
involve a shifting burden of proof. Fla. Stat. §733.107(2) provides “[t]he
presumption of undue influence implements public policy against abuse of
fiduciary or confidential relationships and is therefore a presumption shifting the
burden of proof under ss. 90.301-90.304." For the party challenging a will or
trust on the grounds of undue influence, the question becomes what evidence is
required to shift the burden of proof to the proponent of the will or trust, who is
often the alleged undue influencer? The seminal Florida Supreme Court case
is In re: Estate of Carpenter, 253 So.2d 697 (Fla. 1971). The Carpenter court
held that a presumption of undue influence affecting the burden of proof arises
when:
•Someone who has a substantial benefit under the will,
•possessed a confidential relationship with the decedent, and
•was active in the procurement of the will.
The Carpenter court reasoned that it would not be difficult to prove the first and
second elements of the presumption of undue influence, but that the “active
procurement” element would be more difficult. Accordingly, it provided guidance
by articulating seven nonexclusive factors to assist a trier of fact to determine
whether there was active procurement. Those seven “Carpenter factors” are:
1) presence of the beneficiary at execution of will;
2) presence of the beneficiary at times when testator expressed a
desire to make the will;
3) recommendation by the beneficiary of an attorney to draw the will;
4) knowledge of the contents of the will by the beneficiary prior to
execution;
5) giving instructions on preparation of the will by the beneficiary to the
attorney drawing the will;
6) securing of witnesses to the will by the beneficiary; and
7) safekeeping of the will by the beneficiary subsequent to execution.
The Carpenter court stated that the aforementioned seven factors were neither
mandatory nor exclusive. “We do not determine that contestants should be
required to prove all the listed criteria to show active procurement…[as] it will be
the rare case in which all the criteria will be present…[w]e have troubled to set
them out primarily in the hope that they will aid trial judges in looking for those
warning signals pointing to active procurement of a will by a beneficiary.” Id.
(emphasis added) The Cripe court extended the Carpenter factors to inter
vivos transfers. Additionally, Florida courts recognize at least three other
indicators of active procurement:
8) isolating the testator and disparaging family members (Newman v.
Smith, 82 So.2d 236 (Fla. 1919); In re Auerbacher’s Estate, 41 So.2d 659
(Fla. 1949); In re: Ates’ Estate, 60 So.2d 275 (Fla. 1952));
9) inequality of mental acuity between the decedent and the
beneficiary (Peacock v. DuBois, 105 So.2d 321 (Fla. 1925); In re: Estate
of Reid, 138 So.2d 342 (Fla. 3d DCA 1962); and
10) reasonableness of the trust provision (Newman v. Smith, 82 So. 236
(Fla. 1919)).
See, David P. Hathaway, Make it an Even 10: Courts Rely on More than the Seven
Carpenter Factors to Analyze a Claim for Undue Influence of a Will or Trust, The
Florida Bar Journal, Volume 83, No. 6 (June, 2009).
In Florida, the presumption of undue influence shifts the burden of proof.
Florida Statute §733.107(2) provides “[t]he presumption of undue influence
implements public policy against abuse of fiduciary or confidential relationships
and is therefore a presumption shifting the burden of proof under ss. 90.301-
90.304.” (While the undue influence presumption statute is codified in the
Probate Code relative to will contests, Florida courts have broadly applied the
presumption of undue influence to lawsuits involving inter vivos transfers.
See, Cripe v. Atl. First Nat'l Bank, 422 So. 2d 820 (Fla. 1982)). Accordingly, the
presumption of undue influence shifts the burden of proof and is not merely a
vanishing or “bursting bubble” presumption. Ehrhardt, Florida Evidence §§302.1,
302.2 (Thomson/West 2016 ed.) Once the presumption of undue influence is
raised, the burden of proof is reversed, requiring the proponent of the challenged
instrument to prove, by the greater weight of the evidence, that no undue
influence occurred. Diaz v. Ashworth, 963 So.2d 731, 734 (Fla. 3d DCA
2007); Hack v. James, 878 So.2d 440 (Fla. 5th DCA 2004).
In an undue influence case, once proper execution of the Will (or trust) has been
established, the individual challenging the documents has the burden of
presenting evidence to prove the elements of undue influence by a
preponderance of the evidence, which simply means the trier of fact finds it is
more likely than not there was undue influence. It is important to note that
the Carpenter factors are not the elements of the cause of action of
undue influence. They relate solely to the shifting burden of proof. Even if a will
contestant cannot prove the Carpenter factors, he or she may still be able to
prove undue influence if they have sufficient evidence to prove that the alleged
undue influencer destroyed the free will and controlled the mind of the testator to
such a degree that the resulting will or trust was the product of the mind of the
undue influencer and not that of the testator. However, if the the contestant
presents sufficient evidence to give rise to the presumption of undue influence,
then the burden of proof shifts to the proponent of the document (who is usually
also the alleged undue influencer) to prove by a preponderance of the evidence
that the will (or trust) was not the result of undue influence. Diaz v. Ashworth,
963 So. 2d 731 (Fla. 3d DCA 2007).

…
-Do I have a Case? The presumption of Undue Influence: /probate/do-i-have-a-
case-the-presumption-of-undue-influence/
-Do I have a Case? What Evidence Points to the Conclusion of Undue
Influence? /probate/do-i-have-a-case-what-evidence-points-to-the-conclusion-of-
undue-influence/

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ABA - Defining Undue Influence
https://www.americanbar.org/groups/law_aging/publications/bifocal/vol_35/issue_3_feb2014/defining_
undue_influence/

… Some state probate laws reference the term, and a few states
have definitions that can be summarized as: Undue influence
occurs when a fiduciary or confidential relationship exists in which
one person substitutes his own will for that of the influenced
person’s will. Other states have definitions in criminal or other
codes. …
Most undue influence cases are seen in probate courts with
petitions for guardianships, conservatorships, and with disputed
wills and trusts. Undue influence situations are also seen in
contract law with documents such as deeds, powers of attorney,
and contracts. It may also be present in some criminal cases. In all
those situations, courts consider evidence indicating that undue
influence may or may not have already happened.
With the emergence of elder abuse and mandatory reporting of elder abuse over
the last three decades, community practitioners such as Adult Protective Services
staff, hospital discharge planners, physicians, and public health nurses who work
directly with elders have identified situations where it seems that undue influence
is currently taking place. Community professionals encounter circumstances
where they believe it is happening, where families feel helpless to intervene, and
where elders are left penniless by scams, sometimes by lottery scams initiated in
other countries.
The issue is particularly important because the number of people over 65 is
increasing nationwide. According to federal statistics
(see: http://www.aoa.gov/AoAroot/Aging_Statistics/), in the year 2000, people 65+
represented 12.4% of the population. That number is expected to grow to 19% of
the population by 2030. With this demographic shift comes increased focus on the
telemarketers and lottery scams that target these vulnerable adults.
Legislating the Definition
Definitions of undue influence have been difficult to legislate for many reasons.
Undue influence usually takes place behind closed doors and there are no
witnesses. And, adults are legally able to make decisions about their affairs
unless a court has appointed a guardian or conservator. For instance, an elder
who is unduly influenced has the legal right to spend his money on telemarketers
even though it may jeopardize his assets. Complicating the matter is that undue
influence is often linked to impaired cognitive capacity even though it frequently
occurs when the elder clearly has capacity.
Complicating the matter even further, undue influence is present in many other
circumstances such as hostage situations, families, telemarketers, domestic
violence, prisoners of war, cults, and white collar crime. It could even apply to
totalitarian regimes that act to control populations since the elements are similar.
Such a variety of complex circumstances with varying levels of intensity have
made it difficult to formulate an overarching definition of undue influence.
Undue Influence Case
A petition was filed for the Public Guardian to be appointed the guardian of
person and estate for Ms. R. The Western Union office had contacted Adult
Protective Services with concerns about the amount of money Ms. R. was wiring
to another country. Her sister in Canada received notice of the petition and was
certain that Ms. R. was being “railroaded” into a guardianship. She immediately
came to visit Ms. R. and observed her speaking on the phone in a secretive
manner several times a day. Ms. R. would not tell her sister who the caller was or
what the call was about.
Later it was learned that Ms. R. was talking to her “dear friend” who lived in a
different country and who was going to make certain that Ms. R. received a
million dollars if only she would send more money now—it was a Jamaican lottery
scheme. Ms. R. thought she was making investments. The sister became
convinced that Ms. R. needed the guardianship because she could not be talked
out of speaking with her “dear friend” and sending the money. She was on the
way to impoverishing herself.
The court appointed a public guardian to serve as guardian of person and estate.

…
CA: The research study prompted the second response: landmark legislation
modernizing the definition of undue influence. The new definition took effect
January 1, 2014, and affects probate matters such as conservatorships, wills, and
trusts. The new definition was also placed in the state’s Welfare and Institutions
Code, addressing the financial abuse of an elder or a dependent adult. The
language is the same in both codes and consists of the following:
“Undue influence” means excessive persuasion that causes another person to act
or refrain from acting by overcoming that person’s free will and results in inequity.
In determining whether a result was produced by undue influence, all of the
following shall be considered:
1.Vulnerability of the victim. Evidence of vulnerability may include,
but is not limited to, incapacity, illness disability, injury, age,
education, impaired cognitive function, emotional distress, isolation,
or dependency where the influencer knew of, or should have known
of, the alleged victim’s vulnerability.
 2.The influencer’s apparent authority. Evidence of apparently
authority may include but is not limited to, status as a fiduciary,
family member, care provider, health care processional, legal
professional, spiritual adviser, expert, or other qualification
3.The actions or tactics used by the influencer. Evidence of actions
or tactics used may include, but is not limited to, all of the
following:
1.Controlling necessaries of life, medication, the victim’s
interactions with others, access to information or sleep.
2.Use of affection, intimidation, or coercion.
3.Initiation of changes in person or property rights, use of
haste or secrecy in effecting those changes, effecting changes
at inappropriate time and places, and claims of expertise in
effecting change.
4.The equity of the result. Evidence of the equity of the result may
include, but is not limited to, the economic consequences to the
victim, any divergence from the victim’s prior intent or course of
conduct or dealing, the relationship of the value conveyed to the
value of any services or consideration received, or the
appropriateness of the change in light of the length and nature of
the relationship. Evidence of an inequitable result, without more, is
not sufficient to prove undue influence.
The new law requires that judges and juries consider the law when making
determinations about undue influence. The four factors are weighted equally,
which means that no factor is more important than another. In addition, all four
are not required to determine if undue influence has occurred. In fact, a judge or
jury could decide that undue influence has taken place where the four factors are
not present. While this is not likely, it is possible because the new definition and
factors merely requires that the judge or jury consider them.
… The definition was purposefully written in lay terms so
community practitioners can utilize it more easily. Since specific
examples of evidence are included, undue influence may be more
easily detected.
…
About the Author: Mary Joy Quinn is the Commission’s liaison from the National
College of Probate Judges and Director (ret.), Probate Court at San Francisco
Superior Court in San Francisco, CA. She is currently active in the fields of
conservatorship, guardianship, elder abuse, and undue influence.

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https://www.investopedia.com/terms/u/undue-influence.asp

Undue influence occurs when an individual is able to persuade another's decisions due to the
relationship between the two parties. Often, one of the parties is in a position of power over the other
due to elevated status, higher education, or emotional ties. The more powerful individual uses this
advantage to coerce the other individual into making decisions that might not be in their long-term best
interest. In exerting undue influence, the influencing individual is often able to take advantage of the
weaker party. In contract law, a party claiming to be the victim of undue influence may be able to void
the terms of the agreement.

Breaking Down Undue Influence

Undue influence occurs when an individual is able to use an advantage to coerce another party's
decisions. Often, this coercion occurs to the detriment of the weaker party and the gain of the more
powerful or influential party. Some relationships, such as one between a patient and a doctor or a parent
and a child, are considered to run the risk of undue influence and are legally outlined. The onus in this
type of relationship is on the person with influence to prove that he was not using his position to take
advantage of the other party. In other situations, one party, based on previous interactions, can be
accused of using the trust of the other party to his advantage.

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Undue influence
An equitable doctrine that involves one person taking advantage of a position of power over another person

In jurisprudence, undue influence is an equitable doctrine that involves one person taking
advantage of a position of power over another person. This inequity in power between the
parties can vitiate one party's consent as they are unable to freely exercise their independent
will.

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