Where the Presumption of Undue Influence Should Not Apply: Consider the "Dutiful Son" and the "Dutiful Daughter" Exceptions.

• Author: Douglas, Alexander S.

More than 30 years ago, our Florida Supreme Court in In re Carpenter, 253 So. 2d 697 (1971), outlined relevant factors that could be used to show undue influence over a testator. These factors, which are commonly referred to as the Carpenter factors, focus on the circumstantial evidence that is often seen in undue influence cases. Having a list of factors that may allow one who is attacking the validity of a testamentary document to create a presumption of undue influence that shifts the burden of proof to the defendant dramatically changed the playing field in probate and trust litigation. Because undue influence often occurs in private, away from family members or witnesses, the Supreme Court recognized that public policy interests supported shifting the burden to the person being accused of undue influence to come forward with reasons why their actions were proper.

Generally, the issue of undue influence is not ripe until after a testator of a will or a grantor of a trust has passed away, eliminating one of the key witnesses in the case. The person who benefited from the disputed testamentary document will, of course, defend the document. Oftentimes, the witnesses that participate in a will or trust signing do not know much about the circumstances under which the document was prepared, or the preceding events. No lawyer who prepared a document being attacked could be expected to testify that he or she believed the client signed the document under the influence of another. If that were the case, the attorney would face ethical and liability issues facilitating the execution of the document.

Undue influence is presumed when 1) a person with a confidential relationship with the testator; 2) was active in procuring or securing the preparation or execution of the devise; and 3) is a substantial beneficiary thereof. Under Carpenter, the Supreme Court laid out the following nonexclusive list of factors that, if present, may show a presumption of undue influence: 1) presence of the beneficiary at the execution of the document in question or at the occasions where the testator expressed desire to devise; 2) the beneficiary's recommendation of an attorney to prepare the document in question; 3) the beneficiary's knowledge of the document's contents prior to its execution or the occasions where the testator expressed desire to devise; 4) the beneficiary giving instructions to the drafting attorney; and 5) the beneficiary securing witnesses and safekeeping of documents after execution.

In Hack v. Estate of Helling, 811 So. 2d 822, 826 (Fla. 5th DCA 2002), another factor was added--the inequality of mental capacity and strength between the testator and beneficiary. The presumption of undue influence under the Florida Evidence Code permanently shifts the burden to the defendant during the case to prove why he or she did not commit undue influence. The presumption of undue influence is a burden shifting presumption under F.S. [section]90.304...