In short: Under § 732.5165, a Florida will is void to the extent it was procured by undue influence. A presumption arises when a substantial beneficiary in a confidential relationship actively procured the will, and § 733.107(2) shifts the burden of proof to that beneficiary. Courts weigh the In re Estate of Carpenter factors.
The caregiver drove him to the lawyer. The caregiver sat in on the meeting. The caregiver is now the main beneficiary of the will, and the kids got almost nothing.
That is what an undue influence case looks like.
The Rule: A Procured Will Is Void
Section 732.5165 is short: “A will is void if the execution is procured by fraud, duress, mistake, or undue influence.” Only the parts affected by the influence fail. The rest of the will can stand.
Undue influence is not ordinary persuasion, pleading, or family pressure. It is influence strong enough to replace the testator’s free will with someone else’s, so that the will reflects what the influencer wanted, not what the testator wanted.
You Rarely Have Direct Proof, So the Law Uses a Presumption
Nobody admits to unduly influencing a dying man. So Florida courts use a presumption. It generally arises when the person challenging the will shows that someone:
- Was a substantial beneficiary under the will
- Had a confidential or fiduciary relationship with the testator (a caregiver, an agent under a power of attorney, a trusted advisor, a close relative managing their affairs)
- Was active in procuring the will
When those elements are present, § 733.107(2) makes the presumption one that shifts the burden of proof. The person who benefited then has to prove the will was not the product of undue influence. That shift often decides the case.
What “Active Procurement” Looks Like
The Florida Supreme Court’s decision in In re Estate of Carpenter, 253 So. 2d 697 (Fla. 1971), identified the factors courts weigh to decide whether a beneficiary actively procured a will:
- The beneficiary was present when the will was signed
- The beneficiary was present when the testator first said they wanted a new will
- The beneficiary recommended the lawyer who drafted it
- The beneficiary knew what the will said before it was signed
- The beneficiary gave instructions for preparing the will
- The beneficiary found the witnesses
- The beneficiary kept the will after it was signed
The list is not exclusive, and no single factor is required. Courts look at the whole picture, along with the testator’s health, isolation from family, and dependence on the beneficiary.
A Story From My Practice
A dying man’s friend arranged the will that left the friend the estate. When we put the evidence in front of the court (who arranged what, who was in the room, what the man’s condition was), the entire will was thrown out. The details are here: A Dying Man’s Friend Wrote His Will. I Got the Entire Thing Thrown Out. Every case is different, and outcomes depend on the evidence.
Inheritance Fraud Is Rising
We are in the middle of the largest transfer of wealth in history, from aging parents to their families. Predators know it. Will disputes and inheritance disputes are among the most searched legal terms for a reason.
Warning signs while a parent is still alive:
- A new “friend” or caregiver isolating the parent from family
- Sudden changes to the will, accounts, or deeds
- A new lawyer nobody in the family knows
- Someone else controlling the parent’s mail, phone, or appointments
Do Not Miss the Deadline
An undue influence claim against a probated will is a will contest. If you were served with the notice of administration, you generally have 3 months to file (§ 733.212(3)). Evidence fades fast. Witnesses forget, medical records get harder to get, and the money moves.
Watch: the videos behind this article
Florida Undue Influence Probate Explained | Will Contest Guide
A Dying Man’s Friend Wrote His Will. I Got the Entire Thing Thrown Out. Here’s What Happened.
WARNING: Inheritance Fraud Is Exploding—How Predators Are Targeting Aging Parents
Go Deeper
Frequently Asked Questions
What is undue influence in a Florida will?
Influence strong enough to replace the testator’s free will with someone else’s. A will procured by undue influence is void under § 732.5165, to the extent affected.
When is undue influence presumed in Florida?
Generally when a substantial beneficiary had a confidential or fiduciary relationship with the testator and was active in procuring the will. Under § 733.107(2), the presumption shifts the burden of proof.
What are the Carpenter factors?
From In re Estate of Carpenter, 253 So. 2d 697 (Fla. 1971): the beneficiary’s presence at execution or when the testator expressed a desire to make a will, recommending the attorney, knowing the contents in advance, giving drafting instructions, securing witnesses, and keeping the will.
How long do I have to raise undue influence against a probated will?
It is a will contest, generally due within 3 months after service of the notice of administration under § 733.212(3).
Talk to a Florida probate litigator
Weidner Law, P.A. handles Florida probate, trust, and will disputes from St. Petersburg. If you need a will contest lawyer in St. Petersburg for undue influence claims and will contests, call (727) 954-8752 or email weidner@mattweidnerlaw.com.
Read the law yourself, free: the full Florida Probate Code and Probate Rules and the Florida Trust Code are on floridarules.net.
This article is general information about Florida law, not legal advice about your situation. Reading it, watching the videos, or contacting the firm does not create an attorney-client relationship. Every case turns on its own facts, and past results do not guarantee a similar outcome. The hiring of a lawyer is an important decision that should not be based solely upon advertisements.
