When you bring a will up to be contested, you will have to prove that the will was not created to reflect the true last wishes of the testator, and as such is invalid.
There are a few common arguments that you may use to claim that a loved one’s will was invalid and contest the will: one of these arguments is that there was undue influence from a beneficiary of the will – usually someone who is receiving more than he or she was expected to receive.
What exactly do you need to prove undue influence?
Traditionally, there are seven “Carpenter factors” (determined by In re Estate of Carpenter, a Florida court case from 1971) that the court will look at to determine whether undue influence was present during the making of a will or trust:
- Presence of the beneficiary at the execution of the will
- Presence of the beneficiary on those occasions where the testator expressed a desire to make a will
- Recommendation by the beneficiary of an attorney to draw the will
- Knowledge of the contents of the will by the beneficiary prior to execution
- Giving of 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 subsequent to execution
How Do You Collect Evidence?
Basically, the beneficiary in question should have been present for a lot of the process of making the will. When you are building a case to prove undue influence, it is crucial to consider all of the above Carpenter factors and collect evidence for each individual factor.
In many cases, the testator’s other relatives and loved ones will be your best asset. They can testify if the beneficiary in question made remarks about changing the will, drafting the will in private, barred others from speaking about the will, and so on.
Consult your lawyer about what can be done to contact the attorney who drew up the will and learn more about the process, or to prove that the beneficiary was present for any of the above-mentioned occasions.
Additional Things to Consider
It is possible for a beneficiary to fight back against the Carpenter factors, especially if they had a very close relationship with the testator. This is just one of many reasons why it is so important to work with a lawyer who possesses the specific experience you need and a track record of success in these types of cases.
A knowledgeable probate attorney understands how to use the following three factors to solidify your claim of undue influence against someone:
- Isolation of testator or family members. How many other family members were present while the will was made? How many family members were aware of meetings between the beneficiary and the testator?
- Mental inequality between testator and beneficiary. This is especially important if the testator eventually became mentally incapacitated. If the will was drafted shortly before that time, they may have been losing mental capacity, and have been more easily influenced by the beneficiary.
- Reasonableness of will or trust provisions. Do the estate planning documents make sense? Simply pointing out the lack of logic may help to strengthen your case.
Will contests can certainly be tricky. To give yourself the best chance at success, make sure a skilled Florida probate lawyer is by your side throughout the process.
About the Author:
Christopher Q. Wintter is the President of Wintter & Associates, P.A. , a four-lawyer trust and estate firm. Mr. Wintter is a Florida Bar Board-Certified Expert in Trust and Estate Law. With more than 28 years’ experience as a practicing attorney, he also serves as an instructor and faculty member for the National Institute of Trial Advocacy (NITA)—the nation’s leading provider of legal advocacy skills training to practicing attorneys—and has earned the AV® Preeminent™ rating with LexisNexis Martindale Hubbell. He was also selected for inclusion in Florida Super Lawyers Magazine for 2011, 2012, and 2014-2016 in Estate and Trust Litigation, and was selected for inclusion to the Best Lawyers in America in 2016 in the area of Estate and Trust Litigation.