Undue Influence

An inheritance or gift devised as the result of undue influence may be set aside in some Florida trust and estate cases. Undue influence claims may be difficult to prove or refute in some instances, but skilled legal counsel may be able to present the evidence persuasively on your behalf. West Palm Beach estate litigation lawyer Jessica Mishali understand the challenges of both asserting an undue influence claim and defending against the allegations. They have the skill and experience to guide you through a will or trust contest action based on undue influence.

Undue influence generally refers to a situation in which one person abuses a fiduciary or confidential relationship with another person for their own benefit. In many cases, this situation leads a person who is sick, elderly, or weak to succumb to pressure to carry out the wishes of the person with undue influence, instead of their own. However, legal instruments or gifts procured through undue influence may be voided or set aside.

Undue influence is a type of fraud that is usually proven through circumstantial evidence. Generally, a person contesting a will or trust has the burden of establishing that it was procured by undue influence. Florida law, however, allows for a presumption of undue influence when the person alleged to have exerted undue influence: (1) occupied a confidential relationship with the testator or grantor, (2) was a substantial beneficiary under the will or trust, and (3) was active in procuring the will or trust. If there is sufficient evidence to give rise to the presumption of undue influence, the burden of proof shifts to the proponent of the instrument to show that the evidence does not constitute undue influence. A dedicated will and trust litigation attorney can review your case to determine whether you may be able to make the requisite showing for an undue influence claim.

While the existence of a confidential relationship and substantial benefit under the will or trust are usually apparent, establishing active procurement of the estate planning instrument may be more difficult. Florida courts have identified several criteria that may be considered in determining whether a beneficiary was active in procuring the will or trust. The criteria include the following:

• The beneficiary was present at the execution of the will;
• The beneficiary was present on occasions when the testator expressed a desire to make a will;
• The beneficiary recommended an attorney to draft a will for the testator;
• The beneficiary gave instructions to the attorney on how to prepare the will;
• The beneficiary knew of the contents of the will before it was executed;
• The beneficiary secured the witnesses to the will;
• The beneficiary kept the will for safekeeping after it was executed.

These factors are not required to prove undue influence, but are helpful in obtaining a presumption of undue influence under Florida law. Ultimately, undue influence may be established with any sufficient evidence that the free will and mind of the testator were controlled by the undue influencer to such a degree that the resulting instrument was the product of the influencer and not the testator.

If you need legal advice concerning potential undue influence in a trust contest or probate action, West Palm Beach estate attorney and Jessica Mishali may be able to assist you. We represent people in communities throughout Palm Beach, Broward, and Martin Counties, including Boca Raton, Fort Lauderdale, Jupiter, Boynton Beach, Pompano Beach, Royal Palm Beach, Wellington, Delray Beach, Davie, Hollywood, Coral Springs, Hallandale Beach, Pembroke Pines, Stuart, Plantation, Palm City, Jensen Beach, Hobe Sound, Indiantown, and more. Contact The Law Office of Jessica Mishali, P.A. online or call (561) 833-2772 to schedule a consultation with one of our attorneys.