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Factors for Undue Influence in a Florida Will and Inter Vivos Transfers

By David M. Goldman

In re Estate of Carpenter, 253 So. 2d 697 (Fla. 1971), the Florida Supreme Court stated to raise the presumption of undue influence, a plaintiff must show a confidential relationship between the donor and the donee and active procurement of the gift. Because courts have found that a confidential relationship exists in most relationships, the real issue comes down to active procurement of the gift. Recently Patrick Lannon wrote a summary of case law on the topic for the Florida Bar journal. Carpenter gives a list of seven factors of active procurement of a will, the:

1) presence of the beneficiary at the execution of the will;
2) presence of the beneficiary on those occasions when the testator expressed a desire to make a 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 of 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.

In contrast with inter vivos transfers courts use a balancing test when evaluating the six recurring factors:

1) the donee?s level of involvement in the donor?s affairs;
2) the donee?s level of involvement in the actual gift in question;
3) the relationship of the donee to the donor as compared to the natural objects of the donor?s bounty;
4) the secrecy or openness of the transaction;
5) the effect of the transfer on the donor?s pre-existing estate plan; and
6) the physical health and mental acuity of the donor at the time of the gift.

Generally it is much harder to undue a gift that takes place with a Florida Will than during the decedents life. These factors should be considered with making or planning to make transfers. With an understanding of how these issues are raised, it is possible to structure transfers so to avoid many of the factors of Undue Influence.

If you would like help in structuring transfers of property to help avoid the appearance of an improper transfer of property, Contact a Florida Will Attorney or a Florida Estate Planning Lawyer to review your case.

If you believe you have been harmed by the improper transfer of property, Contact a Florida Probate Litigation Attorney or a Florida Trust Litigation Lawyer to review your case.

Full post as published by Florida Estate Planning Lawyer Blog on October 13, 2008 (boomark / email).