What is Undue Influence?
You may have heard the phrase and wondered what is undue influence? An undue influence cause of action arises in Florida when an individual exerts influence over a now-deceased person to influence his or her will and trust.
The undue influence could include suggesting, asking, or forcing a change to a will or trust with the intent of changing a will or trust to benefit someone else.
Those who are easily affected by the suggestion to change a will or trust include people who have dementia or Alzheimer’s who could be tricked or talked into making changes.
There may be threatening behavior, intellectual superiority, removals of needed care such as the withdrawal of help, food, or, needed medicines.
There may be a physical influence, or multiple people pressuring someone who is sick, on their deathbed, heavily medicated, and not able to defend their decisions.
There are multiple factors that a court will look at when deciding whether or not undue influence has occurred. The most common factors are known as the Carpenter factors. Some of those include:
- The presence of the defending beneficiary at the execution of the defending will or trust.
- The presence of the defending beneficiary on those occasions when the testator expressed a desire to make a will or trust.
- The recommendation by the defendant of the attorney to draw up the will and trust.
- Knowledge of the contents of the will or trust by the defendant prior to execution.
- Giving instructions on how the will or trust should be drafted to the attorney by the defendant.
- The securing of witnesses to execute the will by the defendant.
- And the safekeeping of the will or trust by the defendant.
These are some of the very common factors that the courts will consider when deciding whether or not undue influence has occurred.
It is important to understand that none of these criteria are mandatory when trying to prove an undue influence case.
And, these Carpenter factors are not the only criteria. A court may consider other factors when deciding whether active procurement in the will or trust has taken place by a defendant.
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