Florida's new statutory presumption of undue influence: does it change the law or merely clarify?

• Author: Nilsson, Steven G.

Unscrupulous people sometimes use undue influence to obtain gifts from persons who are elderly, sick, or weak. To constitute undue influence, a person's "mind must be so controlled or affected by persuasion or pressure, artful or fraudulent contrivances, or by the insidious influences of persons in close confidential relations with him, that he is not left to act intelligently, understandingly, and voluntarily, but subject to the will or purpose of another." (1)

Attorneys often allege undue influence to challenge the validity of a decedent's will, trust, or inter vivos transfer. Instruments or gifts procured through undue influence are void or can be set aside. (2)

The party alleging undue influence in a lawsuit normally bears the burden of proving that claim. If the burden is not met, the party loses. Historically, the burden of proving undue influence could be met by producing evidence sufficient to raise a presumption of undue influence. (3) The presumption effectively shifted to the alleged undue influencer the burden of proving that no undue influence occurred. (4) In the landmark decision of Carpenter v. Carpenter, 253 So. 2d 697 (Fla. 1971), the Florida Supreme Court held that the presumption of undue influence no longer shifted the burden of proof to the alleged undue influencer in will contests. (5) In Cripe v. AtlanticFirst National Bank of Daytona Beach, 422 So. 2d 820 (Fla. 1982), the Florida Supreme Court adopted the Carpenter rule for presumption of undue influence cases involving inter vivos transfers. (6)

The Florida Evidence Code took effect in 1979 and provided a statutory framework for applying presumptions, including the presumption of undue influence. (7) However, Florida courts failed to apply the presumption statutes to undue influence cases or address whether the Evidence Code had legislatively superseded Carpenter and its progeny. (8) In order to "eliminate existing confusion among the bench and bar with respect to the [effect] of the presumption of undue influence," (9) the Probate & Trust Litigation Committee of the Real Property, Probate and Trust Law Section of The Florida Bar proposed specific legislation that became law in April 2002. (10) F.S. [section] 733.107 is quoted below with the statutory changes italicized:

[section] 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.

Although somewhat cryptic at first glance, subsection (2) ("new statute") is carefully crafted to interact with the Florida Evidence Code and mandate a shifting of the burden of proof when the presumption of undue influence arises. The new statute supersedes Carpenter and Cripe insofar as they prohibit a shifting of the burden of proof in presumption of undue influence cases.

This article reviews Florida's common law rules on the shifting burden of proof in presumption of undue influence cases, explains Florida's statutory framework for applying presumptions, addresses the failure of Florida courts to apply the presumption statutes to undue influence cases, and examines the new statute. The article points out the continuing importance of Carpenter and Cripe and suggests that the new statute appropriately shifts the burden of proof to alleged undue influencers.

Shifting Burden of Proof in Disputed Will Cases

In Wartmann v. Burleson, 190 So. 789, 789 (Fla. 1939), the decedent's granddaughters alleged that her will was procured through undue influence. The court rejected that claim, finding that the decedent made her will deliberately and without assistance or coercion from anyone. The court found the evidence insufficient to invoke the following rule: "[W]hen a confidential relationship between the testatrix and the principal beneficiary is shown, a presumption of undue influence arises and the burden shifts to the proponent to prove that undue influence was not exercised." (11)

In In re Palmer's Estate, 48 So. 2d 732, 733 (Fla. 1950), the decedent's mental condition had been impaired due to excessive use of alcohol. The chief beneficiary under the will had a confidential relationship with the decedent, had actively participated in the drafting and execution of the will, and had kept possession of the will. The court held that under the foregoing circumstances, a presumption of undue influence arose which required the chief beneficiary "to prove the absence of undue influence on his part." (12) The will was declared void for undue influence because the chief beneficiary failed to meet his burden of proof. (13)

Shifting Burden of Proof in Disputed Gift Cases

In Rich v. Hallman, 143 So. 292, 293 (Fla. 1932), a 76-year-old invalid had purportedly gifted a note and mortgage to her nurse/personal attendant. In determining whether the purported gift should be upheld, the court stated the following rule:

All these authorities support the general rule founded on public policy that where a mutual confidential relation exists and a gift is made to one in whom the confidence is reposed it is prima facie void because of such relation. The law presumes in other words, when such relation exists that the gift was obtained by undue influence or other improper means. (14) (Emphasis added.)

The court refused to uphold the purported gift because the nurse/personal attendant failed to meet her burden "to show conclusively that the gift[s] to her ... were free from the taint of undue influence." (15)

In Wilkins v. Wilkins, 192 So. 791, 792, 793 (Fla. 1940), a fiduciary had obtained from the decedent a change of insurance beneficiary designation and personal and real property. In determining whether the foregoing transfers should be set aside, the court quoted a number of rules, including the "public policy" rule quoted in the preceding paragraph and the following rule: "A fiduciary will not be allowed to reap a harvest planted upon the fields of fiduciary relationship without a clear showing of good faith and no unfair advantage having been indulged." (16)

The foregoing...