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Home > Blog > Probate > Shifting the Burden of Proof in an Undue Influence Matter

Shifting the Burden of Proof in an Undue Influence Matter


Undue influence can be a significant issue if you or a decedent’s other loved ones believe some other individual exerted their will over their elderly family member’s wishes. Inappropriate and excessive influence over an elderly person can result in unlawful real estate transfers, gifts, and changes to their will or trusts.

If you believe someone exerted undue influence over your currently living or deceased loved one, then speak with an experienced Florida probate attorney. Based on the Second District Court of Appeals case in Florida, Heasley v. Evans, undue influence “must amount to over-persuasion, duress, force, coercion, or artful or fraudulent contrivances to such a degree that there is destruction of the free agency and will power of the one making the will.”

Proving this can be difficult, but the Florida Supreme Court in the case In re: Estate of Carpenter laid out the necessary elements.

Proving Undue Influence based on Carpenter

Under Florida law, the individual or family challenging a will or property transfer based on undue influence must prove a number of elements in order to transfer the burden of proof to the other party, who must then prove that the changes to the will or transfer were lawful.

First, the court in Carpenter stated that there is a presumption of undue influence that shifts the burden of proof if you can establish:

  • Someone who has a substantial benefit under the will,
  • Had a confidential relationship with the decedent, and
  • Was active in procuring the will.

Establishing the first two elements is not particularly difficult. However, what does it mean to actively procure the will? The court explained further by outlining seven nonexclusive factors you can use to help prove active procurement:

  • The beneficiary’s presence at the execution of the will;
  • The beneficiary’s presence at times when the decedent expressed the desire to make a will;
  • If the beneficiary recommended an attorney to draft the will;
  • The beneficiary’s knowledge of the contents of the will prior to its execution;
  • If the beneficiary gave instructions on preparing the will to the attorney;
  • If the beneficiary secured witnesses to the execution of the will;
  • The beneficiary was in charge of the safekeeping of the will after its execution.

Additional Proof of Undue Influence

If you are contesting a will or other matter based on undue influence, you do not have to prove each of these factors to shift the burden of proof. You can also establish other circumstantial factors to prove there was active procurement of the will by the beneficiary. Other Florida courts have recognized factors such as:

  • Isolating the decedent;
  • Disparaging other family members; and
  • An imbalance of mental acuity between the elderly person and beneficiary.

The Carpenter factors act merely as guidance that can help you prepare for your case and establish a presumption of undue influence, thereby shifting the matter to your opponent.

Once the Burden Shifts

If you are able to establish a presumption of undue influence through these factors and others, the burden shifts to the beneficiary. They are not required to prove that they did not violate the law and that their actions were lawful and decedent’s actions were valid. They must prove by the greater weight of the evidence that there was no undue influence over the elderly individual.

Let a Florida Probate Attorney Help You

Contesting a will, trust, or property transfer can be difficult. Let our experienced Florida probate attorneys at the Law Offices of Larry E. Bray, P.A. fight for you and your family. Contact us online or call 561-571-8970 to schedule a consultation.




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