Make it an even 10: courts rely on more than the seven Carpenter factors to analyze a claim for undue influence of a will or trust.

• Author: Hathaway, David P.
• Position: Florida

In probate litigation, parties might contest the validity of a will or trust by arguing that the decedent was unduly influenced by a substantial beneficiary when the will or trust was made. To prove undue influence, one must demonstrate that the beneficiary had a confidential relationship with the decedent and actively procured the will or trust. Active procurement can be difficult to prove because the maker of the will or trust is deceased and the challenging party usually has to rely on circumstantial evidence. (1)

In In re Estate of Carpenter, 253 So. 2d 697 (Fla. 1971), the Florida Supreme Court reviewed prior case law on active procurement and listed "[s]everal criteria to be considered" in determining active procurement. These are the seven "Carpenter factors":

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. (2)

The Carpenter court stated that these factors are neither mandatory nor exclusive. "[W]e do not determine that contestants should be required to prove all the listed criteria to show active procurement ... [as] it will be the rare case in which all the criteria will be present." (3) "We have troubled to set them out primarily in the hope that they will aid trial judges in looking for those warning signals pointing to active procurement of a will by a beneficiary." (4) Furthermore, "the criteria we have set out cannot be considered exclusive; and we may expect supplementation by other relevant considerations appearing in subsequent cases." (5)

In Carpenter, the testator, by her last will and testament, left her entire estate outright to her daughter, and nothing to her three surviving sons. (6) Two sons contested probate of the will on the ground that it was procured by undue influence. The trial court found that the testator was exceptionally fond of one of her sons, who substantially assisted her financially and otherwise, and that she expressed an intention on numerous occasions to leave her estate equally to her four children. The trial court also found that the testator's daughter made all of the arrangements for the preparation of her mother's last will, and that she kept it a secret from her brothers. When the daughter appealed the trial court's ruling that the will was procured by undue influence, the court of appeals affirmed in part and remanded with directions regarding the burden of proof. (7)

In 2002, the Florida Legislature amended F.S. [section]733.107 and created a legal presumption of undue influence shifting the burden of proof as a public policy against abuse of fiduciary or confidential relationships. Specifically, the statute provides:

733.107 Burden of proof in contests; presumption of undue influence.--1) In all proceedings contesting the validity of a will, the burden shall be upon the proponent of the will to establish prima facie its formal execution and attestation. Thereafter, the contestant shall have the burden of establishing the grounds on which the probate of the will is opposed or revocation is sought.

(2) The presumption of undue influence implements public policy against abuse of fiduciary or confidential relationships and is therefore a presumption shifting the burden of proof under ss. 90.301-90.304.

In 2004, the Fifth District in Hack v. Janes, 878 So. 2d 440 (Fla. 5th DCA 2004), discussed the effect of the amended statute:

The effect of the amended statute is "to make clear that the presumption of undue influence by an actively involved substantial beneficiary who is in a fiduciary or confidential relationship with the testator is a policy-based shifting of the burden of proof. This insures that the presumption does not 'vanish' upon production of rebuttal evidence by the proponent of the [w]ill." (8)

The court observed that the new statute superseded Carpenter as to the legal effect of the presumption of undue influence, but not as to the circumstances giving rise to the presumption.

In addition to the seven Carpenter factors, however, Florida law recognizes at least three other indicators of active procurement: a) isolating the testator and disparaging family members; b) mental inequality between the decedent and the beneficiary; and c) the reasonableness of the will or trust provisions. This article analyzes the case law surrounding these additional factors to assist practitioners in fully developing a case for or against undue influence.

Isolating the Testator and Disparaging Family Members

As early as 1919, the Florida Supreme Court found undue influence where a beneficiary purposefully isolated the decedent by denying access to family and friends, with hopes of breaking down whatever ties of affection existed between the decedent and his family and friends. (9) In Newman v. Smith, 82 So. 2d 236 (Fla. 1919), a beneficiary of a will had intercepted letters and telegrams sent to the decedent by his daughter, ignored all requests contained within them, and responded only to prevent the decedent's daughter from visiting the decedent. (10) The beneficiary's isolation of the decedent denied the daughter all access to the decedent, such that "the ties of fatherly affection [were] destroyed." (11) The court stated that based on these facts, it would have invalidated the will on the grounds of undue influence alone without any evidence of lack of testamentary capacity. (12)

Thirty years later, the Florida Supreme Court again found a will was created by undue influence where a wife isolated the decedent not only to destroy the affection between him and his sons from a previous marriage, but also...