Wills and trusts allow an individual to proscribe what will happen to their property after death. Unfortunately, people take advantage of ill or older adults to manipulate their estate planning documents to benefit themselves. Under Florida law, this manipulation is called undue influence, and it’s a common reason why someone may contest a will or trust.
Undue influence is complicated to prove and requires more than a hunch or gut feeling. You need solid evidence showing not only that undue influence was present but that it impacted the distribution of assets. If you are concerned that a loved one’s will or trust was impacted by undue influence, you want to reach out to an experienced undue influence attorney. Attorney Thomas Upchurch is knowledgeable about the process of proving undue influence and will zealously advocate on your behalf.
What is undue influence?
Undue influence occurs when one party takes advantage of another, more vulnerable party. Undue influence can be present in many situations, but it is commonly seen in the case of wills and trusts. If an individual suffers from illnesses such as Alzheimer’s or dementia that result in limited mental faculties or is dependent upon another person for care, it leaves that individual open to manipulation. Most commonly, we see people exert undue influence to financially benefit themselves by either adding themselves as a beneficiary in estate planning documents or by increasing the share they receive and potentially removing other beneficiaries.
What are signs of undue influence?
Undue influence can show up in many different ways, but there are commonly seen signals that indicate that an individual was experiencing undue influence when creating their estate planning documents:
- Terms of the document – If the document contains provisions or distributions that are unexpected or unreasonable, that is a telltale sign of undue influence. Examples of such terms include leaving a close family member out of the will or trust or leaving a surprisingly large amount to certain individuals or organizations with no explanation.
- The capacity of the individual – If, at the time the estate planning document was created, the individual suffered from circumstances that made them vulnerable, that is another indication undue influence may have occurred. Circumstances that make an individual vulnerable can include illness, injury, or medications the individual was taking.
- Dependency – If the individual creating the estate planning documents is dependent on another person for care, this unequal power dynamic can lead to undue influence. The individual may feel like they need to comply with their caretaker’s demands to ensure their wellbeing.
When does undue influence generally occur?
There are certain relationships that make undue influence more likely, including:
- Family relationships – Most frequently, undue influence occurs between family members. Family members tend to have a closer, confidential bond, which can be taken advantage of for financial reasons. The exploitation of elderly family members is all too common, and undue influence is just one way it can manifest.
- Caretaking relationships – Any time a person is dependent on another for care, they are more at risk of being exploited. Many times a caretaker is also a family member, but it doesn’t have to be. Paid caretakers can also financially exploit those they care for and can be the ones exerting undue influence.
- Legal relationships – By definition, legal relationships are confidential and often close. Individuals often confide things to their legal representatives that they will not share with others. This type of relationship can make an individual more susceptible to undue influence.
How do you prove undue influence?
Proving undue influence is a challenge. Oftentimes the person unduly influencing the individual has what looks like a close relationship with the individual. It can be hard to determine if that close relationship ever turned into exploitation. To help individuals show that undue influence occurred, the Florida courts have determined specific factors to use when evaluating a claim of undue influence. These factors are designed to help determine if a person “actively procured” a change in terms of a will or trust, including:
- Was the individual accused of undue influence present when the document was signed?
- Was the individual accused of asserting undue influence present when the desire to create the document was expressed?
- Did the individual accused of undue influence recommend an attorney to prepare the documents?
- Was the individual accused of undue influence aware of the contents of the document prior to its execution?
- Did the individual accused of undue influence provide instruction to the attorney preparing the document?
- Did the individual accused of undue influence assist with securing witnesses for the document signing?
- Did the individual accused of undue influence keep the document after it was executed?
It’s important to be aware that a claim for undue influence cannot be pursued until the grantor or testator has passed away. There can be a significant amount of time between the undue influence and the grantor or testator’s death, which makes undue influence even harder to prove. In many cases, the events happened so long ago that the person being accused of exerting undue influence is the only one left with firsthand knowledge of the circumstances surrounding the execution of the documents in question.
Burden of Proof in an Undue Influence Claim
The courts in Florida recognize this difficulty, and to make it easier to prove undue influence, the court will shift the burden of proof in some cases.
If the person bringing the claim for undue influence can show all of the following, then the court will shift the burden of proof to the individual accused of undue influence:
- The person accused of undue influence receives a substantial benefit as the document is written.
- The person accused of undue influence had a confidential relationship with the grantor or testator.
- The person accused of undue influence was active in the procurement of the trust or will.
Some of the above items are easier to establish than others. The terms of the will or trust are easily reviewed, and the relationship between the parties is also easier to determine as there are usually many witnesses who can testify to the nature of the relationship.
Showing an individual was “active in the procurement” of the document is more challenging. The seven factors detailed above are strong indicators of active procurement, but there is no one specific factor that definitively proves undue influence, and the court will consider additional factors that you and your attorney bring forth.
Such times are when it’s especially beneficial to have an experienced attorney on your side. An attorney who is familiar with undue influence and estate litigation, like Attorney Thomas Upchurch, can help you navigate these nuanced factors and work with you to put together the strongest case possible. An experienced attorney will also ensure that you understand all of the implications surrounding the burden and proof and the impact the judge’s decision has on your claim moving forward.
When the Burden of Proof Shifts
Just because the court determines that the above-listed elements have been met and the burden of proof shifts, that doesn’t mean that undue influence is sufficiently proven, and the document will be invalidated. It solely means that the individual accused of undue influence has to show by a preponderance of the evidence that they did not, in fact, exert undue influence.
Conversely, if the burden of proof does not shift, that doesn’t mean that your case is automatically over. You will still have a chance to show that the individual exerted undue influence, but you will be the one who has an obligation to prove it.
Who can bring a claim of undue influence?
To contest a will or trust due to undue influence, you have to have legal standing. Legal standing means that the person challenging the document has an interest in the estate. The most obvious parties to have standing to challenge a will or trust are the beneficiaries. However, the issue of standing is not always black and white.
A party can argue that they have standing if they have an interest in the trust, a prior trust, the trustee, or the grantor. This is a broad group that may include numerous people.
If you’re unsure if you have the standing to bring a claim of undue influence, contact an experienced estate litigator who can review the facts and advise you on your rights.
Contact an Undue Influence Attorney
If you’re concerned that a loved one’s will or trust was the product of undue influence or you’ve been accused of exerting undue influence, don’t hesitate to act. You need a legal professional who is on your side and can guide you through this process. Effectively arguing your case can be stressful and complex. Florida estate litigation lawyer Thomas Upchurch is experienced in handling undue influence claims. He’ll fight to ensure that your loved one’s true wishes are carried out.
Contact Upchurch Law today to set up a consultation and see how we can help you.
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