In an effort to provide a better understanding for what undue influence expert psychologists look for when forming opinions about whether undue influence occurred in the execution of a will, trust, beneficiary designation, or other contractual document, I am highlighting the statutes, case law, and jury instructions specific to all 50 states. Each will be in its own blog post. Ninth up, Florida.

Heasley v. Evans, 104 So. 2d 854, 857 (Fla. 2d DCA 1958) and Jordan v. Noll, 423 So.2d 368, 370 (Fla. 1st DCA 1982):

Undue influence means “over-persuasion, duress, force, coercion, or artful or fraudulent contrivances to such an extent that there is a destruction of free agency and willpower of the testator.”

“Mere affection, kindness, or attachment of one person for another may not of itself constitute undue influence.”

Donnelly v. Mann, 68 So.2d 584, 586 (Fla. 1953):

“[M]ere weakness of mind, unaccompanied by any other inequitable incident, if the person has sufficient intelligence to understand the nature of the transaction and is left to act upon his own free will, is not a sufficient ground to set aside an agreement.”

Peacock v. Du Bois, 105 So. 321, 322 (Fla. 1925):

“To constitute ‘undue influence’ the 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 purposes of another.”

In re: Estate of Carpenter 253 So. 2d 697 (1971)

The burden of proof shifts to the proponent of the will when “Someone who has a substantial benefit under the will possessed a confidential relationship with the decedent and was active in the procurement of the will.”

Seven factors that may help determine “active procurement” (they are neither mandatory or exclusive):

The presence of the beneficiary at the execution of the will.
The presence of the beneficiary at times when the testator expressed a desire to make the will.
A recommendation by the beneficiary for an attorney to draw the will.
Knowledge of the contents of the will by the beneficiary prior to execution.
Giving instructions on preparation of the will by the beneficiary to the attorney drawing the will.
Securing of witnesses to the will by the beneficiary.
Safekeeping of the will by the beneficiary after its execution.

Hathaway, David P., Make it an Even 10: Courts Rely on More than the Server Carpenter Factors to Analyze a Claim for Undue Influence of a Will or Trust, The Florida Bar Journal, Volume 83, No. 6 (June, 2009):

Three other factors recognized by Florida courts that can be considered when attempting to determine if “active procurement” has occurred:

Isolating the testator and disparaging family members;
Mental inequality between the decedent and the beneficiary; and
The reasonableness of the will or trust provisions.

Florida Jury Instruction 416.27 Affirmative Defense – Undue Influence (CONTRACTS):

(Defendant) claims that [he] [she] [it] should be able to set aside the contract because (claimant) unfairly pressured [him] [her] [it] into agreeing to the contract. To establish this defense, (defendant) must prove both of the following:

(Claimant) used [a relationship of trust and confidence] [or] [(defendant)’s weakness of mind] [or] [(defendant)’s needs or distress] to control, persuade, or pressure (defendant) into agreeing to the contract; and
(Defendant) would not otherwise have voluntarily agreed to the contract.

Quinn v. Phipps, 93 Fla. 805, 113 So. 419 (1927):

Confidential Relationship: “The relation and duties involved need not be legal; they may be moral, social, domestic or personal. If a relation of trust and confidence exists between the parties (that is to say, where confidence is reposed by one party and a trust accepted by the 6 other, or where confidence has been acquired and abused), that is sufficient as a predicate for relief. The origin of the confidence is immaterial.”

“The fiduciary relation exists between parties where there is a relation of trust and confidence between them, that is, where confidence is reposed by one party and a trust accepted by the other.”

Rand v. Giller, 489 So. 2d 796 (Fla. 3d DCA 1986):

Just because the proponent of the will was named as Personal Representative, that does not constitute “substantial benefit.”

Levin v. Levin, 60 So. 3d 1116 (Fla. 4th DCA 2011):

Merely showing that a confidential relationship existed without any other suspicious circumstances is not enough to prove undue influence.

Gardiner v. Goertner, 149 So. 186 (Fla. 1932):

“[U]ndue influence is not usually exercised openly in the presence of others, so that it may be directly proved, hence it may be proved by indirect evidence of facts and circumstances from which it may be inferred.”

Florida Statutes Title XXLII § 733.107: Burden of proof in contests; presumption of undue influence:

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. A self-proving affidavit executed in accordance with s. 732.503 or an oath of an attesting witness executed as required in s. 733.201(2) is admissible and establishes prima facie the formal execution and attestation of the will. Thereafter, the contestant shall have the burden of establishing the grounds on which the probate of the will is opposed or revocation is sought.
In any transaction or event to which the presumption of undue influence applies, the presumption 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.