Undue Influence

When a will is challenged on the grounds of undue influence, the influence must amount to over persuasion, duress, force, coercion, or artful or fraudulent contrivances to such an extent that there is a destruction of free agency and willpower of the testator.  A presumption of undue influence arises in favor of a will contestant if it is established that a substantial beneficiary under the will occupied a confidential relationship with the testator and was active in procuring the contested will. The origin of the confidence between the benefactor and testator is immaterial and the confidential relationship is broadly defined: The rule embraces both technical fiduciary relations and those informal relations that exist wherever one man trusts in and relies upon another. The relation and the duties involved in it need not be legal. It may be moral, social, domestic, or merely personal.

As for a determination of whether a substantial beneficiary was active in the procurement of the will, the following non-exclusive list of factors are for a court’s consideration:

a) presence of the beneficiary at the execution of the will;
b) presence of the beneficiary on those occasions when the testator expressed a desire to make a will;
c) recommendation by the beneficiary of an attorney to draw the will;
d) knowledge of the contents of the will by the beneficiary prior to execution;
e) giving of instructions on preparation of the will by the beneficiary to the attorney drawing the will;
f) securing of witnesses to the will by the beneficiary; and
g) safekeeping of the will by the beneficiary subsequent to execution.

These listed criteria are only general guidelines and a will contestant is not required to prove them all to establish active procurement. Taken from Raimi v. Furlong, 702 So. 2d 1273, 1275 (Fla. 3d DCA 1997).