Did someone exercise undue influence upon the individual by drafting a new will?

Often during the execution of a will there is the discovery of a new will, which may formally change the significant beneficiaries.

For example, a new will may significantly decrease an awarded share of the deceased estate and award that portion to another.

In such cases, someone may have exercised undue influence upon the individual by drafting a new will.

But setting out to prove undue influence is not a hard science. However, understanding a few basic realities about Florida probate court and undue influence will help you with the next steps.

1. Undue Influence is Proven by Circumstantial Evidence.

While forensic evidence would not be turned away in probate court if it gave weight in an undue influence dispute, circumstantial evidence is often all that is needed to prove undue influence.

In South Florida, undue influence cases rely heavily on what are known as Carpenter factors. There are seven in all, each outlining the kind of circumstances that merit a closer look at the will’s validity.

In short, the undue influencer is highly suspicious if they hover through most of the drafting of a new will.

2. The Victim of Undue Influence is Not Necessarily of “Diminished Capacity.”

Florida probate law notes that undue influence occurs when there exists an “inequality of mental acuity between the decendent [owner of the will] and the beneficiary [individual named in the will and also suspected of undue influence].”

While this often occurs when the not-yet-deceased is of an unsound mind, that is not always the case.

Even in their best mental state, people can be coerced by someone of superior intelligence. As noted above, those acting not in good faith can take advantage of their relationship with the victim by always being around “helping” them.

In these circumstances, the undue influencer possesses a greater power to convince the will’s owner to value their opinion over that of others.

3. It’s All About “Shifting the Burden of Proof.”

Florida probate courts trying cases of undue influence have had difficulty over the years arriving at a clear understanding of who in the courtroom is obligated to demonstrate a burden of proof.

For example, the individual formally accusing another individual of undue influence must present a “presumption of undue influence.” In nearly all presumptions, it must hold significant weight and bear (on some level) the burden of proof that undue influence did occur.

Filing a presumption of undue influence must be done carefully with the help of a probate attorney. The goal in presumptions is to make an argument so carefully that the burden of proof immediately shifts to the one accused of undue influence.

A well-crafted presumption in Florida must consult the Carpenter factors. These factors help you make clear arguments that the accused not only “hovered” in the life of the deceased, but also proved a critical player in the drafting of a new will.

4. Florida Undue Influence Cases Have a Very Short Statute of Limitation.

Typically, you do not have much time to dispute a will. It is important that you seek the aid of a probate attorney immediately if you suspect undue influence.

While statute of limitations in probate court typically only lasts a few weeks to a few months, Florida has allowed for “delayed discovery” in exceptional circumstances in matters of undue influence.

5. Disputing a Will on the Basis of Undue Influence Involves Outright Litigation Involving a Trial.

If you are prepared to file a presumption of undue influence, you need to be prepared for trial. A probate attorney will help you pull together all the necessary paperwork and evidence.

6. There Can Be Accomplices in Cases of Undue Influence.

Accomplices can be complicit in the undue influence or altogether clueless. It is important to name all the individuals involved in the will change. Your probate attorney will insure that everyone involved is properly deposed.

7. The Undue Influencer is a “Substantial Beneficiary” of the New Will.

Take a look at the old will, then the new. Does the person you suspect of applying undue influence suddenly become a “substantial beneficiary?”

If so, you very likely have a case. Examine the relationship that existed between the undue influencer and the deceased.

The person assisting the individual drafting a will is said to bear a “fiduciary” responsibility to the individual drafting their will. That is, the all persons assisting in such a matter must act clearly in the best interest of the person drafting a will rather than in their own best interest.

If you suspect undue influence after the death of a loved one, consult your local Boca Raton probate attorneys today for help.  For more information about how an attorney can help you with wills, probate and inheritance, contact Balkan & Patterson at 561-750-9191 or visit our website.