Undue Influence in Florida: A Plain Guide to the Elements

Responsible attorney: Leslie V. Marenco, Trust Counsel, PL, Coral Gables, Florida.

Lawyers often test the claim with three questions. What are the three elements of undue influence? Questions about undue influence in a trust or estate dispute often depend on the specific facts and circumstances of each situation.

What does undue influence mean in a will or trust?

Ordinary persuasion is different. A parent who loves one child more, or who chooses to leave a gift to a helpful caregiver, has not necessarily been unduly influenced. The real question is whether another person’s pressure replaced the maker’s own choice. For a broader view of disputes like this, see our trust litigation overview.

What are the three elements of undue influence?

Each case turns on its own facts.

Susceptibility. Was the maker vulnerable when the document was signed? Someone who is elderly, seriously ill, dependent on another person for daily care, or weakened in mind or body may be susceptible. The focus is the maker’s condition on the signing date.

Opportunity. Did the other person have access to the maker and a real chance to shape the decision? Controlling visits, handling paperwork, or sitting in on meetings with the drafting attorney are examples of opportunity.

Actual exertion of influence. Did that person’s pressure produce a change the maker would not otherwise have made? A new beneficiary or a sharply altered share that matches the influencer’s interest, rather than earlier plans, is the kind of change courts examine.

Other states word the test differently. Whether the elements are met turns on the facts of each case.

How the presumption and burden of proof work in Florida

The person challenging a will generally carries the burden. In a will contest, the proponent must first establish prima facie the will’s formal execution and attestation. After that, the contestant must establish the grounds for opposing probate (Fla. Stat. § 733.107). The Florida Probate Rules state the same will-contest burden.

A trust contest follows a similar rule. The contestant has the burden of establishing the grounds for invalidity (Fla. Stat. § 736.0207).

The presumption works differently. In any transaction or event to which the presumption of undue influence applies, it is a presumption shifting the burden of proof under §§ 90.301-90.304 (Fla. Stat. § 733.107).

Warning signs courts and attorneys look at

Warning signs are facts a court weighs. They are not proof on their own.

• Dependence. The beneficiary handles daily care, housing, transportation, or money for the maker.
• Isolation. Family and friends see the maker less often, and one person controls calls and visits.
• Sudden change. The document departs sharply from prior plans, with no clear explanation.
• Presence. The beneficiary is in the room when the document is discussed, drafted, or signed.

A California Courts guide lists similar circumstances, including physical dependency and the influencer’s involvement in executing documents. California law differs from Florida law, so use it only as a general picture. For the records that support each element, see our guide to evidence needed for undue influence.

How the elements are tested in a Florida trust dispute

Each element usually needs its own support. Courts look at medical and care records, bank and transfer records, prior estate plans, and witness accounts. A Florida Courts memorandum on fraud and undue influence notes that these cases can be difficult to win. For how these elements are built in a contest, read how to prove undue influence in a trust.

Timing matters. A will contest cannot be commenced before the testator’s death (Fla. Stat. § 732.518). The statute does not bar a guardian of an incapacitated settlor from bringing that action (Fla. Stat. § 736.0207).

If you are concerned about a document you have seen

You may be watching a parent change, or you may have just learned about a new will or trust. You may also be worried about a relative’s care. That is a hard place to stand, and you don’t have to sort out the legal test alone.

Our free first consultation is confidential and carries no obligation to continue. Call (305) 707-7126 or reach out through our contact page to talk through the facts.

Our only office is in Coral Gables, Florida. We serve clients in Fort Lauderdale, Boca Raton, West Palm Beach, Doral, Kendall, Pinecrest, Key Biscayne, and Aventura. The firm advises and represents trustees, personal representatives and beneficiaries.

Frequently asked questions

What are the three elements of undue influence?