In short: Undue influence in Florida isn’t limited to wills. A deed, lifetime gift, or trust amendment procured by undue influence can be set aside. When a beneficiary with a confidential relationship was active in procuring the transfer, the Carpenter presumption shifts the burden of proof (§ 733.107(2)). Lifetime transfers also raise capacity questions and can be exploitation under Chapters 415 and 825.
Families focus on the will. But by the time the will is read, the house may already have been deeded to the child who lived there, and the accounts retitled. Undue influence works on lifetime transfers too.
The Carpenter Presumption
In In re Estate of Carpenter, 253 So. 2d 697 (Fla. 1971), the Florida Supreme Court held that a presumption of undue influence arises when a substantial beneficiary (1) had a confidential relationship with the person, and (2) was active in procuring the transfer. The court listed factors for active procurement, including:
- Presence of the beneficiary when the document was signed.
- Presence of the beneficiary when the person expressed a desire to make the document.
- Recommending the lawyer who drafted it.
- Knowing what was in it before it was signed.
- Giving instructions on its preparation.
- Securing the witnesses.
- Keeping the document after it was signed.
The Legislature made that presumption burden-shifting: it "implements public policy against abuse of fiduciary or confidential relationships and is therefore a presumption shifting the burden of proof" (§ 733.107(2)). Florida courts apply the same framework to deeds and other lifetime transfers.
Capacity for a Deed Is Different
Testamentary capacity is a low bar. A deed or a lifetime gift is a present transfer, and the capacity required is generally higher. Medical records, cognitive testing, and the timing of a diagnosis matter.
Interested Witnesses
In Florida, a will is not invalid just because a beneficiary witnessed it (§ 732.504(2)). But who was in the room, who arranged the signing, and who picked the witnesses still feed the Carpenter analysis.
Overlap With Exploitation Law
A deed or retitled account obtained from a vulnerable adult by someone in a position of trust can also be exploitation under § 415.102 and § 825.103, which opens civil damages and attorney’s fees under § 415.1111.
Tortious Interference With an Inheritance
Florida recognizes a claim for tortious interference with an expected inheritance. But where probate offers an adequate remedy, such as a timely will contest, the Florida Supreme Court has required that remedy to be pursued first (DeWitt v. Duce, 408 So. 2d 216 (Fla. 1981)).
Act Before Title Changes Twice
A deed can be sold or mortgaged. Once a bona fide purchaser or lender is involved, unwinding the transfer gets harder. Record a lis pendens when you file, and move quickly.
Watch: the videos behind this article
Cloy Family Deed Battle — Elderly Mother’s Transfer Challenged as Undue Influence
Will Contest Florida: Undue Influence & Family Trauma Explained
More Short Videos on This Issue
Watch the Real Appellate Arguments
These are recordings of actual Florida appellate oral arguments over undue influence in deeds, trusts, and wills, posted on the channel. An argument is not a ruling: read the written opinion before relying on any outcome.
Sister Says Take Me Out of the Will — Then Claims Undue Influence | DiStefani | 2D13-5667
Undue Influence in a Will: Florida 2nd DCA Probate Case
Will Fraud Case & Tampering Allegations | Florida Appellate Court Oral Argument
Go Deeper
- Undue Influence in Florida: How Courts Decide When a Will Was Procured by Someone Else
- A Dying Man’s Friend Wrote His Will. I Got the Entire Thing Thrown Out.
- "Exploitation of a Vulnerable Adult" by Exerting Undue Influence
Frequently Asked Questions
Can a deed be set aside for undue influence in Florida?
Yes. A deed or other lifetime transfer procured by undue influence can be set aside, and Florida courts apply the Carpenter presumption when a beneficiary in a confidential relationship was active in procuring it.
What is the Carpenter presumption?
A presumption of undue influence that arises when a substantial beneficiary had a confidential relationship with the person and was active in procuring the document. Under § 733.107(2), it shifts the burden of proof.
Does a beneficiary witnessing a will make it invalid in Florida?
No. Under § 732.504(2), a will is not invalid because it was signed by an interested witness, though the circumstances can be evidence of undue influence.
Can I sue for interference with my inheritance in Florida?
Florida recognizes tortious interference with an expected inheritance, but if probate provides an adequate remedy, such as a will contest, that remedy generally must be pursued first.
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 for an undue influence claim, 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.
