As people age, it may become easier for certain people to take advantage of them. When a person takes advantage of an elderly person for his or her personal gain, this is undue influence under Florida law. Undue influence can occur in many different forms, but the end result is the same. Someone has taken advantage of your loved one and caused the transfer of an asset, will, or money to the undue influencer against your loved one’s wishes. If you or you suspect your loved on has been the victim of undue influence, there may be a remedy under Florida law for you to sue the individual responsible and return assets wrongfully taken.


What is undue influence and how does it occur? 

Undue influence can occur in a few ways. First, an elderly person may be taken advantage of and persuaded by a person in a position of confidence to transfer money or an asset to the influencer, even though the elderly person would not make the transfer under circumstances where the influencer is not involved. Examples of this type of undue influence include when a caretaker persuades an elderly person to transfer his or her home to the caretaker, even though the elderly person intended to give the house to his or her children in the will. Any transfer that materially changes the distribution scheme of an estate plan can be vulnerable to a claim of undue influence, even if the existing estate plan was intestacy.

Second, an elderly person can be unduly influenced to include a person in his or her will who would not have been included under normal circumstances. An example of this scenario is when an elderly person originally only give his or her assets to family members, but then changes his or her will to include another person who the elderly person has recently met, or a neighbor.

Third, an elderly person can be unduly influenced to create a trust for the benefit of a new person, which is something that the elderly person would not have done before.


What are the elements of an undue influence claim? 

The elements of undue influence are set out in the case In re Estate of Carpenter, 253 So. 2d 697 (Fla. 1971). In Carpenter, the court states the following as the elements of a claim for the presumption of undue influence in Florida, “If it is established in Florida that if a substantial beneficiary under a will occupies a confidential relationship with the testator and is active in procuring the contested will, the presumption of undue influence arises.” Id. at 701. If a party is able to establish these elements, then the presumption of undue influence arises, and it will be up to the accused influencer to rebut this presumption.

First, the influencer needs to be a substantial beneficiary of the will, or received the asset contested to be transferred under undue influence.

Second, the influencer needs to occupy a “confidential relationship” with the testator (the person who is the holder of the will) or the person who gave the property to the influencer. A confidential relationship encompasses fiduciary relationships, family relationships, professional relationships, or friendly relationships. Basically, an argument can be made that an influencer occupies a confidential relationship if that person is trusted by the person being influenced and is able to hold sway over that person’s decision making.

Finally, the influencer needs to be active in procuring the will or the transfer of property. In Carpenter, the court states, “Several criteria to be considered in determining active procurement emerge from a study of these cases: (a) presence of the beneficiary at the execution of the will; (b) presence of the beneficiary on those occasion when the testator expressed a desire to make a will; (c) recommendation by the beneficiary of an attorney to draw the will; (d) knowledge of the contents of the will by the beneficiary prior to execution; (e) giving of instructions on preparation of the will by the beneficiary to the attorney drawing the will; (f) securing of witnesses to the will by the beneficiary; and (g) safekeeping of the will by the beneficiary subsequent to execution.” Id. at 702.


Undue influence claims are complex and only an attorney will be able to tell you if you may have a claim. 

It is important to remember that if you have been involved in the above elements, this does not necessarily mean that you have committed undue influence. In order to an undue influence claim to occur, the person occupying the above elements must have influenced the person to the extent that the person being influenced basically had no free will to make his or her decision. Essentially, the influencer is forcing the person to make a decision that they would not normally make if the person was not in the position of being influenced. Simply helping a family member with a will or driving them to an attorney’s office is not sufficient to establish a claim for undue influence.

The examples in this post do not encompass all of the possible ways that an undue influence claim can occur. If you think that your loved one has been the victim of undue influence or if there are strange transfers of assets or changes to your loved one’s estate plan, you should talk to an attorney right away. An experienced litigation attorney will be able to assess the facts and will tell you if you may have a claim for undue influence.


Contact us today if you think you may have an undue influence claim. 

If you think that your loved one has been the victim of undue influence in Florida, contact us today for a free consultation. We will be able to assess the situation to see if action can be taken to protect your loved one’s interests and wishes. If you suspect undue influence, it is important to talk to an attorney quickly, especially if the assets have already been transferred. Involving an attorney early on will make it more likely that any transactions under undue influence can be undone and your loved one’s wishes preserved.

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