Sometimes individuals find themselves in situations where they are taken advantage of, and unfortunately, this is prominently seen in the sick and elderly. Many have heard stories of family members or friends being scammed for money. In the most extreme situations, an individual will execute or reform a will because the individual has been a victim of undue influence. The relationship between the victim and procurer of undue influence can be moral, social, domestic or merely personal. Quinn v. Phipps, 93 Fla. 805, 113 So. 419 (1927).
To prove undue influence, it must amount to "over persuasion, duress, force, coercion, or artful or fraudulent contrivances to such extent that there is a destruction of free agency and willpower of the testator." In re: Lamberson's Estate, 407 So.2d 358, 362 (Fla. 5th DCA 1981).
One of the leading cases, In re: Estate of Carpenter, 253 So.2d 697 (Fla. 1971), establishes seven factors (not inclusive) to determine active procurement in establishing undue influence:
1. Presence of the beneficiary at the execution of the will;
2. Presence of the beneficiary on those occasions when the testator expressed a desire to make a will;
3. Recommendation by the beneficiary of an attorney to draw the will;
4. Knowledge of the contents of the will by the beneficiary prior to execution;
5. Giving of instructions on preparation of the will by the beneficiary to the attorney drawing the will;
6. Securing of witnesses to the will by the beneficiary; and
7. Safekeeping of the will by the beneficiary subsequent to execution.
The outcome of most cases turns on which party has the burden of proof, the contestant or procurer.The contestant initially has the burden and once established the procurer has to provide evidence the will was not a result of undue influence. Proving and disproving undue influence is often difficult and expensive and the results usually depend on which party has the burden of proof.