{"id":5282,"date":"2026-10-27T06:04:35","date_gmt":"2026-10-27T06:04:35","guid":{"rendered":"https:\/\/trustcounsel.com\/resources\/trust-litigation-attorney\/trust-litigation-attorney-presumption-undue-influence-florida\/"},"modified":"2026-10-28T00:33:41","modified_gmt":"2026-10-28T00:33:41","slug":"trust-litigation-attorney-presumption-undue-influence-florida","status":"publish","type":"page","link":"https:\/\/trustcounsel.com\/resources\/trust-litigation-attorney\/trust-litigation-attorney-presumption-undue-influence-florida\/","title":{"rendered":"Presumption of Undue Influence Florida: How Courts Decide"},"content":{"rendered":"\n
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Probate & Trust Litigation | Coral Gables, Florida<\/p>

Presumption of Undue Influence in Florida: How Courts Decide<\/h1>

Trust Counsel, PL focuses on probate and trust litigation for beneficiaries, heirs and fiduciaries. Here is how Florida courts approach a claim that a will or trust was procured by undue influence, and what each side must show.<\/p>

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By Leslie V. Marenco \u00b7 Published October 27, 2026<\/p>\n\n

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It shifts the burden of proof, which changes who must come forward with evidence. This guide explains how the presumption of undue influence in Florida works and which facts matter most.<\/p>\n

What the Presumption of Undue Influence Means in Florida<\/h2>\n

In Florida, a will procured by undue influence is void, and a trust or any part of a trust procured by undue influence is void while the remainder of the trust remains valid if it is not invalid for other reasons, and the presumption can shift the burden of proof. Fla. Stat. \u00a7 732.5165<\/a> says a will is void if its execution was procured by fraud, duress, mistake, or undue influence. For trusts, Fla. Stat. \u00a7 736.0406<\/a> says a trust, or any part procured that way, is void.<\/p>\n

The presumption works as a separate tool. Fla. Stat. \u00a7 733.107<\/a> says the presumption implements public policy against abuse of fiduciary or confidential relationships. It also says the presumption shifts the burden of proof under ss. 90.301-90.304.<\/p>\n

Keep two questions apart. The first is whether the presumption applies. The second is whether undue influence actually happened. The presumption helps with the first question. The second still turns on the evidence, including what the grantor wanted and what the beneficiary did. A presumption is a starting point, not a verdict.<\/p>\n\n

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If a will or trust was signed while a relative or caregiver handled the paperwork, you may have questions worth answering, and you don't have to sort them out alone. Talk it through with Trust Counsel, PL — the first consultation is free, confidential, and carries no obligation.<\/p>

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What Counts as a Confidential Relationship?<\/h2>\n

Common examples include an agent under a power of attorney, a caregiver who handles daily money matters, and an adviser who manages the grantor’s finances.<\/p>\n

An agent under a power of attorney is a fiduciary. Fla. Stat. \u00a7 709.2114<\/a> says an agent who accepts the role must act in good faith. Unless the power of attorney says otherwise, the agent must act loyally for the principal’s sole benefit.<\/p>\n

The relationship alone does not finish the analysis. Courts also look at how that person’s role connected to the disputed gift or document. A caregiver who kept the household running stands in a different position than one who chose the lawyer, set up the signing, and kept the original papers. Written records of who did what can matter as much as a title does.<\/p>\n

How Active Procurement Shows Up in a Dispute<\/h2>\n

Active procurement means the beneficiary took an active part in getting the document made or signed. Typical examples include arranging the meeting, choosing the drafting lawyer, passing along instructions, or being in the room when the grantor signed.<\/p>\n

Presence at signing is one fact among many. A court weighs it with the rest of the record, not by itself. The memo also notes that these cases can be difficult to win.<\/p>\n

Write down who contacted the drafting lawyer, who attended meetings, and who kept the originals. Dates and names help build a clear timeline.<\/p>\n

Why Unusual Terms and a Large Gift Draw Attention<\/h2>\n

A sudden change that strongly favors someone in a confidential relationship can draw closer review. Start by comparing the disputed document with earlier versions. Look at prior wills, trusts, beneficiary designations, and any written notes about the grantor’s wishes.<\/p>\n

Ask whether the change came suddenly and whether anyone explained it. A plan that leaves out children or long-time relatives, or gives most of the estate to a caregiver, may raise questions. Letters, emails, and notes from the time can help show the grantor’s real reasons.<\/p>\n

How the Grantor’s Health and Dependence Matter<\/h2>\n

The grantor’s health and dependence on others can show whether influence was easier to exert. Age, illness, reliance on others for daily needs, and cognitive decline are common factors raised in these disputes.<\/p>\n

A California courts undue influence publication<\/a> lists circumstances often linked to undue influence, including physical dependency, mistreatment, and the alleged influencer’s role in executing documents. That is general context from California, not Florida law.<\/p>\n

Undue influence asks whether someone pressured or steered the grantor. These are separate claims, though the same medical records can bear on both. Care notes and witness accounts from the signing period are common evidence.<\/p>\n

How the Burden Shifts and Who Must Prove What<\/h2>\n

In all proceedings contesting the validity of a will, the burden is on the proponent of the will to establish prima facie its formal execution and attestation under Fla. Stat. \u00a7 733.107<\/a>. In a will contest, the proponent must first show the will was formally signed and attested. After that, the contestant has the burden of proving the grounds to oppose probate.<\/p>\n

Fla. Stat. \u00a7 736.0207<\/a> also says a challenge to a revocable trust generally cannot start until the trust becomes irrevocable by its terms or the settlor dies, and if the whole trust has been revoked, until after the settlor’s death. That section does not stop a guardian of an incapacitated settlor’s property from acting.<\/p>\n

Without the presumption, a challenger must build the case from the facts, such as the relationship, the timing, and the signing. Whether the presumption applies, and whether it holds up, depends on the facts of the specific document, relationship, and timeline.<\/p>\n\n

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Not sure what your next step is?<\/h3>

Talk it through with Trust Counsel, PL — the first consultation is free, confidential, and carries no obligation.<\/p>

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Talk With Trust Counsel About Your Will or Trust<\/h2>\n

If a parent signed a new trust after a caregiver began handling the bills, and the gift now favors that caregiver, those facts deserve a careful look. The same is true when a will was signed while a family member’s health was declining. Call (305) 707-7126 or schedule online<\/a> to talk through the documents and timeline. The first consultation is free, confidential, and carries no obligation to continue.<\/p>\n

Leslie V. Marenco is the responsible lawyer for this page. Trust Counsel, PL has its only office in Coral Gables, Florida, and handles trust litigation and probate litigation matters.<\/p>\n

Quick Answers<\/h3>\n
Is there a presumption of undue influence in Florida?<\/summary>

Yes. Fla. Stat. \u00a7 733.107<\/a> says the presumption shifts the burden of proof.<\/p><\/details>

Does undue influence void a will in Florida?<\/summary>

Fla. Stat. \u00a7 733.107<\/a> does not say that; it first places the burden on the proponent of the will to establish prima facie its formal execution and attestation, and thereafter on the contestant to establish the grounds on which probate of the will is opposed or revocation is sought. Under Fla. Stat. \u00a7 732.5165<\/a>, a will is void if undue influence procured its execution.<\/p><\/details>

When can a revocable trust be contested?<\/summary>

Fla. Stat. \u00a7 732.5165<\/a> does not address this; it provides that a will is void if its execution is procured by fraud, duress, mistake, or undue influence. Fla. Stat. \u00a7 736.0207<\/a> sets that timing rule.<\/p><\/details>\n\n<\/article>\n