Twelve Ways of Proving the Negative and Overcoming the Carpenter Presumption of Undue Influence.

• Author: Ciesla, Larry E.

Estate planning attorneys should be acutely aware of the presumption of undue influence that arises in a will contest (1) after proof of certain facts set forth by the Florida Supreme Court in In re Estate of Carpenter, 253 So. 2d 697 (Fla. 1971), hereinafter referred to as the "Carpenter presumption." The effect of the Carpenter presumption was codified and strengthened in 2002 by the Florida Legislature in F.S. [section]733.107(2).

By way of quick review, in Carpenter, the Florida Supreme Court held that proof of a confidential relationship between a substantial beneficiary under a will and the testator (2) and the beneficiary's active procurement of the will, creates a rebuttable presumption that the beneficiary had unduly influenced the testator in the making of the will. (3) The Florida Supreme Court identified seven nonexclusive facts, proof of which would constitute active procurement of the will:

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. (4)

These are sometimes referred to as the "seven deadly sins" of Carpenter. The court was clear that there is no specific number of factors necessary to invoke the presumption, making this a matter within the discretion of the trial court. (5) Subsequently, a commentator (6) has suggested that the list should be expanded to 10 factors by adding:

8) Isolating the testator and disparaging family members;

9) Mental inequality between the decedent and the beneficiary; and

10) Reasonableness of the will or trust provisions.

When the Carpenter presumption is invoked, [section]733.107 shifts the burden to the defendant to prove, by a preponderance, the nonexistence of undue influence. (7) This article focuses on how to prove this negative.

In some cases, the existence of facts sufficient to raise the Carpenter presumption will be obvious. In those cases, it is suggested that defense counsel consider whether it makes sense tactically to stipulate to the operation of the Carpenter presumption. Such a move may result in the defense gaining credibility in the eyes of the trial judge.

When the presumption applies, [section]733.107(2) provides that it is the will proponent's burden to prove the absence of undue influence. This is sometimes referred to as "proving a negative." (8) It has been suggested that such a burden is "like swatting at unseen sand flies." (9) The main objective of this article is to show that not only can this be done, but, with proper case analysis, discovery, pretrial preparation, and presentation and argument at trial, it is not as difficult as widely believed.

In reality, one defending against the Carpenter presumption should not approach the issue as proving the negative but should prove affirmatively that the testator was acting of his or her own free will. Proof of affirmative facts that create the inference of the exercise of the testator's free will satisfy this test. The following list and discussion of anti-Carpenter factors should be of assistance to practitioners in creating an inference of the exercise of free will.

As is the case with the Carpenter factors, there is no magic number of factors needed to establish the inference of free will to overcome the Carpenter presumption. Each case will turn on its own particular facts. In general, more is better, keeping in mind the ultimate goal of persuading the trial judge of the correctness and strength of the defense's position. While over-persuasion is considered a bad sign when utilized to procure a disputed will, over-persuasion is definitely a good thing when it comes to the quantum of proof adduced by the will proponent when the trial judge weighs the evidence to determine whether the will was procured by undue influence or, rather, was the product of the desires, intention, and free will of the testator.

The following 12 factors may be employed by a will proponent's counsel to prove a testator's exercise of free will, thereby overcoming the presumption of undue influence that may have arisen by proof of as few as three or four of the Carpenter factors. These factors give the will proponent a clear edge in meeting the ultimate burden of the greater weight of the evidence.

Testimony of Drafting Attorney and Witnesses to Execution of Will

In every case involving the defense of a challenged will, it is expected that the witnesses to execution of the will (including the notary) will testify that they believe the testator was exercising his or her free will at the moment the will was executed. If the witnesses made notes or prepared a memorandum after the signing, these written records may be introduced as substantiating evidence. If the witnesses kept no written records, and they do not have any independent recollection of the specifics related to the signing, employees of the drafting attorney's office may provide evidence of the routine practices and procedures employed by the law office for will signings to establish the lack of undue influence. (10) In addition, if a subscribing witness or notary is also a paralegal or legal assistant to the drafting attorney, he...