Florida’s New Statutory Presumption of Undue Influence–Does It Change the Law or Merely Clarify?
U nscrupulous people sometimes use undue influence to obtain gifts from persons who are elderly, sick, or weak. To constitute undue influence, a person’s “mind must be so controlled or affected by persuasion or pressure, artful or fraudulent contrivances, or by the insidious influences of persons in close confidential relations with him, that he is not left to act intelligently, understandingly, and voluntarily, but subject to the will or purpose of another.”1
A ttorneys often allege undue influence to challenge the validity of a decedent’s will, trust, or inter vivos transfer. Instruments or gifts procured through undue influence are void or can be set aside.2
The party alleging undue influence in a lawsuit normally bears the burden of proving that claim. If the burden is not met, the party loses. Historically, the burden of proving undue influence could be met by producing evidence sufficient to raise a presumption of undue influence.3 The presumption effectively shifted to the alleged undue influencer the burden of proving that no undue influence occurred.4 In the landmark decision of Carpenter v. Carpenter, 253 So. 2d 697 (Fla. 1971), the Florida Supreme Court held that the presumption of undue influence no longer shifted the burden of proof to the alleged undue influencer in will contests.5 In Cripe v. AtlanticFirst National Bank of Daytona Beach, 422 So. 2d 820 (Fla. 1982), the Florida Supreme Court adopted the Carpenter rule for presumption of undue influence cases involving inter vivos transfers.6
The Florida Evidence Code took effect in 1979 and provided a statutory framework for applying presumptions, including the presumption of undue influence.7 H owever, Florida courts failed to apply the presumption statutes to undue influence cases or address whether the Evidence Code had legislatively superseded Carpenter and its progeny.8 In order to “eliminate existing confusion among the bench and bar with respect to the [effect] of the presumption of undue influence,”9 The Probate & Trust Litigation Committee of the Real Property, Probate and Trust Law Section of The Florida Bar proposed specific legislation that became law in April 2002.10 F. S. §733.107 is quoted below with the statutory changes italicized:
§733.107 Burden of proof in contests; presumption of undue influence
(1) In all proceedings contesting the validity of a will, the burden shall be upon the proponent of the will to establish prima facie its formal execution and attestation. Thereafter, the contestant shall have the burden of establishing the grounds on which the probate of the will is opposed or revocation is sought.
(2) The presumption of undue influence implements public policy against abuse of fiduciary or confidential relationships and is therefore a presumption shifting the burden of proof under ss. 90.301–90.304.
Although somewhat cryptic at first glance, subsection (2) (“new statute”) is carefully crafted to interact with the Florida Evidence Code and mandate a shifting of the burden of proof when the presumption of undue influence arises. The new statute supersedes Carpenter and Cripe insofar as they prohibit a shifting of the burden of proof in presumption of undue influence cases.
This article reviews Florida’s common law rules on the shifting burden of proof in presumption of undue influence cases, explains Florida’s statutory framework for applying presumptions, addresses the failure of Florida courts to apply the presumption statutes to undue influence cases, and examines the new statute. The article points out the continuing importance of Carpenter and Cripe and suggests that the new statute appropriately shifts the burden of proof to alleged undue influencers.
Shifting Burden of Proof in Disputed Will Cases
In Wartmann v. Burleson, 190 So. 789, 789 (Fla. 1939), the decedent’s granddaughters alleged that her will was procured through undue influence. The court rejected that claim, finding that the decedent made her will deliberately and without assistance or coercion from anyone. The court found the evidence insufficient to invoke the following rule: “[W]hen a confidential relationship between the testatrix and the principal beneficiary is shown, a presumption of undue influence arises and the burden shifts to the proponent to prove that undue influence was not exercised.”11
In In re Palmer’s Estate, 48 So. 2d 732, 733 (Fla. 1950), the decedent’s mental condition had been impaired due to excessive use of alcohol. The chief beneficiary under the will had a confidential relationship with the decedent, had actively participated in the drafting and execution of the will, and had kept possession of the will. The court held that under the foregoing circumstances, a presumption of undue influence arose which required the chief beneficiary “to prove the absence of undue influence on his part.”12 The will was declared void for undue influence because the chief beneficiary failed to meet his burden of proof.13
Shifting Burden of Proof in Disputed Gift Cases
In Rich v. Hallman, 143 So. 292, 293 (Fla. 1932), a 76-year-old invalid had purportedly gifted a note and mortgage to her nurse/personal attendant. In determining whether the purported gift should be upheld, the court stated the following rule:
All these authorities support the general rule founded on public policy that where a mutual confidential relation exists and a gift is made to one in whom the confidence is reposed it is prima facie void because of such relation. The law presumes in other words, when such relation exists that the gift was obtained by undue influence or other improper means.14 ( Emphasis added.)
The court refused to uphold the purported gift because the nurse/personal attendant failed to meet her burden “to show conclusively that the gift[s] to her. . . were free from the taint of undue influence.”15
In Wilkins v. Wilkins, 192 So. 791, 792, 793 (Fla. 1940), a fiduciary had obtained from the decedent a change of insurance beneficiary designation and personal and real property. In determining whether the foregoing transfers should be set aside, the court quoted a number of rules, including the “public policy” rule quoted in the preceding paragraph and the following rule: “A fiduciary will not be allowed to reap a harvest planted upon the fields of fiduciary relationship without a clear showing of good faith and no unfair advantage having been indulged.”16
The foregoing transfers were set aside because the fiduciary failed to meet his burden of proof necessary to uphold the transfers.17
In Carpenter, the trial court found that the daughter had actively procured a favorable will from her mother through a confidential relationship. The trial judge declared the will void because the daughter never overcame the presumption of undue influence that arose against her.18 The Fourth DCA reversed, holding that the trial judge gave incorrect legal significance to the presumption; absent such error, the evidence was insufficient to support a finding of undue influence.19
The Florida Supreme Court affirmed the Fourth DCA decision in part and remanded to the trial court for further proceedings.20 The court stated that the presumption of undue influence arises when a substantial beneficiary in a confidential relationship with the decedent “is active in procuring the contested will.”21 To invoke the presumption against the substantial beneficiary, the contestant must initially produce “testimony” or “evidence” sufficient to permit “an inference of a confidential relationship and active procurement.”22
Carpenter noted that Florida had two common law rules regarding presumptions: a general rule and an exception “ applicable only to will contest cases. ”23 U nder the general rule, a presumption required the defendant to produce evidence sufficient to explain away the presumed fact, but did not shift from plaintiff the ultimate burden of proving his case.24 U nder the will contest exception, the presumption of undue influence actually shifted the burden of proof to the alleged wrongdoer.25
Carpenter criticized the will contest exception on the rationale that it would tie the trial court’s hands, “raise the presumption virtually to conclusive status and require a finding of undue influence.”26 In receding from the will contest exception, the court relied on F.S. §732.31 (the similarly worded predecessor to F.S. §733.107(1) quoted above) to hold that the burden of proof in a will contest must remain with the party contesting the will.27 The court explained that the presumption of undue influence shifts to the beneficiary only the burden of coming forward with a reasonable explanation for his or her active role in the decedent’s affairs. Once that burden is met, the presumption vanishes and the trial court decides the case in accord with the greater weight of the evidence.28
Carpenter overlooked the presumption of undue influence/shifting burden of proof rule recognized in Rich and Wilkins regarding inter vivos transfers29 and did not overrule those decisions.30
Statutory Framework for Applying Presumptions
The Florida Legislature adopted the Florida Evidence Code in 1976 and it became effective in 1979. The Evidence Code expressly supersedes “existing statutory or common law in conflict with its provisions.”31 The Florida Supreme Court concurrently adopted the provisions of the code to the extent they were procedural. In re Florida Evidence Code, 372 So. 2d 1369 (1979).
The Evidence Code, through F.S. §§90.301–90.304 (“presumption statutes”), identifies the types of presumptions that exist in civil proceedings and prescribes the legal effect of those presumptions. A presumption is defined as an assumption of fact which the law makes from the existence of another fact or group of facts.32 P resumptions are either conclusive or rebuttable.33 R ebuttable presumptions are categorized as either implementing public policy (a stronger presumption) or facilitating the determination of a particular type of action (a weaker presumption).34
A presumption established to implement public policy is deemed to affect the burden of proof and imposes upon the party against whom it operates the burden of proving the nonexistence of the presumed fact.35 C onversely, a presumption established primarily to facilitate the determination of a particular type of case is deemed to affect the burden of producing evidence.36 In the latter scenario, the trier of fact must accept the presumed fact as true until credible evidence to the contrary is introduced; at that point, the presumption vanishes and the existence or nonexistence of the presumed fact is simply determined from the evidence.37
Failure to Apply Presumption Statutes
A fter adoption of the Florida Evidence Code, courts applying the presumption of undue influence should have determined whether the presumption existed “to implement public policy” or merely to facilitate determination of an undue influence claim. In the former circumstance, the burden of proof would shift to the alleged wrongdoer.38 In the latter circumstance, the burden of proof would not shift to the alleged wrongdoer.39 When the Florida Evidence Code was adopted, controlling decisions of the Florida Supreme Court treated undue influence claims regarding wills differently from undue influence claims regarding inter vivos transactions.40
Carpenter established the vanishing presumption of undue influence primarily to facilitate the determination of undue influence claims in will contests; thus, the burden of proof did not shift to the alleged wrongdoer under the presumption statutes.41 Carpenter noted that “it is frequently as difficult to disprove undue influence as to prove it” and was unwilling to apply the presumption in a manner that implemented a public policy against undue influence.42
Conversely, the Rich/Wilkins presumption of undue influence applicable to inter vivos transfers implemented public policy against overreaching by fiduciaries.43 Once the presumption arose under those cases and the presumption statutes, the burden of proof shifted to the alleged wrongdoer to prove he did not procure the purported gift through undue influence.44
Unfortunately, the Florida Supreme Court and district courts of appeal broadly applied the Carpenter presumption to lawsuits involving both wills and inter vivos transfers and completely ignored the statutorily required interplay between the common law presumptions of undue influence and the presumption statutes.45 The result was a confusing mess.
In Cripe, 422 So. 2d 820, the decedent’s inter vivos transfers were challenged for undue influence after her death in 1976. It is unclear from the court’s opinion whether the case was tried before adoption of the Florida Evidence Code.46 The court cited four district court of appeal decisions for the proposition that the “rule of Carpenter is properly applied to inter vivos transfers” and applied the Carpenter presumption of undue influence to decide the case.47
Immediately prior to Cripe, the presumption of undue influence regarding inter vivos transfers required the burden of proof to shift to the alleged wrongdoer under the presumption statutes.48 C onfusingly, Cripe changed the foregoing rule of law without addressing the precedents that established the rule of law: the Rich/Wilkins presumption of undue influence,49 The presumption statutes,50 and In re Florida Evidence Code.51 Cripe’s citation to four district court of appeal opinions as authority/precedent for the change was unpersuasive. District courts of appeal have no authority to overrule controlling Florida Supreme Court opinions such as Rich, Wilkins, and In re Florida Evidence Code.52
In In re Estate of Davis, 428 So. 2d 774, 775–76 (Fla. 4th DCA 1983) (“ Davis I ”), a will contest case, Judge Glickstein determined that “strong social policy exists” for the presumption of undue influence, cited the presumption statutes, and determined that the burden of proof indeed shifted to the alleged wrongdoer to prove that the contested will was not procured by undue influence. In In re Estate of Davis, 462 So. 2d 12 (Fla. 4th DCA 1984) (“ Davis II ”), the 4th DCA, en banc, issued a three-sentence opinion receding from Davis I on the basis of Carpenter. Davis II did not address the presumption statutes.
In 1993, Professor Ehrhardt wrote that under the presumption statutes, the presumption of undue influence shifts the burden of proof to the alleged wrongdoer “to show that the gift or devise was not the result of undue influence.”53 He pointed out that the Florida “District Courts of Appeal have refused to apply §90.304” to the presumption of undue influence.54
Williams v. Estate of Helling, 811 So. 2d 822, 825–26 (Fla. 5th DCA 2002), was an undue influence/will contest decision released for publication days before the new statute became law. The court acknowledged the views of Professor Ehrhardt and Judge Glickstein, but chose to follow Carpenter.
The new statute was enacted to resolve the foregoing inconsistency and uncertainty between the presumption statutes, appellate court opinions applying the presumption of undue influence, the Florida Supreme Court’s opinion adopting the Florida Evidence Code, and the comments of one of Florida’s most highly respected legal scholars.55
The New Statute
F. S. §733.107(2) specifically mandates that the “presumption of undue influence implements public policy. . . and is therefore a presumption shifting the burden of proof under ss. 90.301–90.304.” Accordingly, when the presumption of undue influence arises, the alleged wrongdoer bears the burden of proving there was no undue influence.
The legislature apparently views no inconsistency between subsections (1) and (2) of F.S. §733.107.56 A petitioner attacking a will based upon undue influence continues to have the burden of establishing the undue influence. However, the petitioner can meet that burden by producing evidence sufficient to raise a presumed fact that the will was procured through undue influence. If the respondent thereafter produces sufficient evidence to overcome the presumption, the petitioner concurrently fails to meet the statutory burden of establishing undue influence.
The new statute is codified as part of a statute that provides rules for will contests. The title to the legislation enacting the new statute refers to the amendment as “clarifying the circumstances which shift the burden of proof in certain proceedings contesting the validity of a will. ”57 Legislative history to the new statute contains similar statements.58 No parallel statute was enacted to require a similar rule in contests involving trusts or inter vivos transfers. In other areas, the legislature has enacted parallel statutes for both wills and trusts.59
Although one might assume for reasons mentioned in the preceding paragraph that the new statute applies only to will contests, that conclusion would be incorrect. In Cripe, the Florida Supreme Court required the presumption of undue influence to be uniformly applied in contests involving either testamentary or inter vivos gifts.60 The new statute nowhere supersedes Cripe’s requirement that the presumption of undue influence be uniformly applied. The language of the new statute nowhere limits application of the new statute only to will contests. The proper approach is to apply the new statute not only to will contests, but also to contests involving trusts and inter vivos transfers. In this manner, uniformity will be maintained and legislatively established public policy will be implemented. Similar public policy considerations apply in postdeath challenges regardless of whether the disputed gift is testamentary or inter vivos.
Carpenter and Cripe Partially Survive New Statute
T hose portions of Carpenter and Cripe that prescribe the legal effect of the presumption of undue influence61 are superseded by the new statute. Those portions of Carpenter and Cripe that explain the circumstances giving rise to the presumption of undue influence62 are not superseded by statute. Cripe’s requirement of uniform application of the presumption of undue influence is not superseded by statute.63
Neither the presumption statutes nor the new statute change the “greater weight of the evidence” standard applicable to undue influence cases under Carpenter and Cripe.64 The same evidentiary standard should be applied to the alleged wrongdoer’s burden of overcoming a presumed fact of undue influence.65
New Statute Appropriately Shifts Burden of Proof
A lthough courts and scholars have long disagreed over the proper legal effect of rebuttable presumptions,66 The new statute requires an appropriate shifting of the burden of proof in undue influence cases. Undue influence is rarely susceptible of direct proof because of secret or private dealings between the decedent and the alleged wrongdoer; the latter typically testifies that he did nothing wrong, and the decedent never testifies to the contrary.67 S elf-serving testimony of the alleged wrongdoer is inherently suspect, but is often difficult to overcome for lack of more compelling direct evidence.
Florida is a retirement state with a substantial older population. We frequently read or learn of the elderly being financially exploited by people they rely upon and trust. Senior citizens suffering from sickness, weakness, or both, are particularly susceptible to undue influence.
A higher burden should be placed on those who claim substantial gifts under circumstances where self-serving manipulation and overreaching can easily occur. Once the trial court makes a prima facie determination that the alleged undue influencer enjoyed a confidential relationship with the decedent and was active in procuring the disputed instrument/gift, it is reasonable and appropriate to shift the burden of proof to the alleged wrongdoer to show that no undue influence occurred.
The new statute clarifies Florida law by requiring the presumption of undue influence to operate within the framework of the presumption statutes that took effect in 1979. The new statute changes Florida law by requiring that once the presumption arises, the burden of proof shifts to the alleged wrongdoer to show that he or she did not procure the disputed instrument or gift through undue influence. Although Carpenter arguably overstated the practical impact of such a burden-shifting rule,68 The undue influence pendulum clearly has moved against those who procure testamentary or inter vivos gifts from the elderly, sick, or weak through misuse of confidential or fiduciary relationships.
1 Peacock v. Dubois, 105 So. 321, 322 (Fla. 1925).
2 Fla. Stat. §§732.5165, 737.206, and 655.79; In re Palmer’s Estate, 48 So. 2d 732 (Fla. 1950); Rich v. Hallman, 143 So. 292 (Fla. 1932).
3 See infra text accompanying notes 11–17.
4 Id .
5 See infra text accompanying notes 18–28.
6 See infra note 47 and accompanying text.
7 See infra notes 31–37 and accompanying text.
8 See infra note 45 and text accompanying notes 45–55.
9 Probate & Trust Litigation Committee’s statement of Reasons for Proposed Advocacy concerning “Proposed Amendment to §733.107, Fla. Stat.”
10 2002 Fla. Laws ch. 02-82. The governor approved this law on April 23, 2002.
11 Wartmann v. Burleson, 190 So. 789, 790 (Fla. 1939).
12 In re Palmer’s Estate, 48 So. 2d 732, 733 (Fla. 1950).
14 Rich, 143 So. 292, 293 (Fla. 1932).
15 Id . at 293.
16 Wilkins v. Wilkins, 192 So. 791, 792–93 (Fla. 1940).
17 Id . at 793.
18 Carpenter v. Carpenter, 253 So. 2d 697, 698–699 (Fla. 1971).
19 Id . at 700.
20 Id . at 705.
21 Id . at 701.
22 Id . at 701–02.
23 Id . at 703 (emphasis added).
24 Id .
25 Id . at 702–03.
26 Id. at 703–04.
28 Id . at 704. If the beneficiary cannot establish a reasonable explanation, she loses. Williams v. Estate of Helling , 811 So. 2d 822, 826–27 (Fla. 5th D.C.A. 2002).
29 See supra text accompanying note 23.
30 Carpenter is not stare decisis on points it overlooked and did not address. Pooton v. Berutich , 199 So. 2d 139, 142 (Fla. 2d D.C.A. 1967) (stating that “stare decisis applies only to points that are involved and determined in a case in such a way as to be considered of compelling force as precedents in subsequent cases”). Fla. Stat. §732.31, relied upon by Carpenter to refuse to shift the burden of proof , applied to will contests, not contests involving inter vivos transfers.
31 Fla. Stat. §90.102.
32 Fla. Stat. §90.301(1).
33 Fla. Stat. §90.301(2).
34 Fla. Stat. §§90.302–90.304.
35 Fla. Stat. §§90.302(2)–90.304.
36 Fla. Stat. §§90.302(1)–90.304.
37 Fla. Stat. §302(1).
38 Fla. Stat. §§90.302–90.304.
40 See supra text accompanying notes 11–30.
41 See supra text accompanying notes 23–28.
42 Carpenter, 253 So. 2d at 703–04. In reviewing Carpenter in light of the presumption statutes, Judge Glickstein observed as follows: “I am troubled that in Florida once a contestant has established that a person in a position of confidence has actively procured the execution of the will, thus triggering the ‘presumption,’ the contestant still has the burden of proof. In other words, there is no public policy which would shift the burden of proof to the proponent .” In re Estate of Davis , 462 So. 2d 12, 14 (Fla. 4th D.C.A. 1984) (Glickstein, J., concurring). (Emphasis added.)
43 See supra text accompanying notes 14–17.
45 The Florida Supreme Court and all the district courts of appeal failed to discuss or apply the presumption statutes to decisions rendered by those courts after the effective date of the Florida Evidence Code. Instead, the courts all cited and relied upon Carpenter. See, e.g., Cripe, 422 So. 2d at 823; Brock v. Brock , 692 So. 2d 907, 911–12 (Fla. 1st D.C.A. 1996) ; Ballard v. Ballard , 549 So. 2d 1176, 1178 (Fla. 2d D.C.A. 1989); Williamson v. Kirby, 379 So. 2d 693, 695 (Fla. 2d D.C.A. 1980); Raimi v. Furlong , 702 So. 2d 1273, 1287 (Fla. 3d D.C.A. 1997); Stetzko v. Coleman , 714 So. 2d 1087, 1090 (Fla. 4th D.C.A. 1998); Fennell v. Lampkin, 470 So. 2d 37, 39–40 (Fla. 5th D.C.A. 1985).
46 For a discussion of whether an appellate court applies the law in effect at the time of the trial, or intervening new law, see Florida East Coast Railway Co. v. Rouse , 194 So. 2d 260 (Fla. 1966); and Pate v. Mellen, 275 So. 2d 562 (Fla. 1st D.C.A. 1972).
47 Cripe, 422 So. 2d at 823–24. Williamson v. Kirby , 379 So. 2d 693 (Fla. 2d D.C.A. 1980); Bryant v. Bryant, 379 So. 2d 382 (Fla. 1st D.C.A. 1979); Majorana v. Constantine, 318 So. 2d 185 (Fla. 2d D.C.A. 1975); Pate v. Mellen, 275 So. 2d 562 (Fla. 1st D.C.A. 1973) .
48 See supra text accompanying notes 14–17, 29–30 and 38–44.
49 See supra text accompanying notes 14–17; although the court implicitly overruled the Rich/Wilkins shifting burden of proof/presumption of undue influence, Wilkins was cited and discussed with approval on other points. Cripe, 422 So. 2d at 823.
50 See supra text accompanying notes 31–37.
51 See supra text following note 31.
52 Hoffman v. Jones, 280 So. 2d 431, 440 (Fla. 1973).
53 C. Ehrhardt , Florida Evidence §304.1 (1993 ed.). (Emphasis added.)
54 Id . See supra note 45.
55 The Florida Bar Probate and Trust Litigation Committee’s statement of Reasons for Proposed Advocacy concerning “Proposed Amendment to §733.107, Fla. Stat.”
56 The court in Carpenter recognized an inconsistency between Fla. Stat. §732.31 and a rule holding that the presumption of undue influence shifts the burden of proof to the alleged wrongdoer. Carpenter, 253 So. 2d at 703. The court quoted the following language of Fla. Stat. §732.31 in recognition of the will contestant’s continuing burden of proof “to establish the facts constituting the grounds upon which the probate of such purported will is opposed or revocation thereof is sought.” Carpenter, 253 So. 2d at 700–04 (emphasis added). Interestingly, the similarly worded successor statute, Fla. Stat. §733.107(1), refers to the will contestant’s burden “of establishing the grounds on which the probate of the will is opposed or revocation is sought” (Emphasis added.)
57 2002 Fla. Laws ch. 02-82. (Emphasis added.)
58 See Analysis of Senate Comm. on Judiciary Staff (Feb. 19, 2002) and Analysis of House of Representatives Council for Smarter Government (March 6, 2002) for 2002 Fla. Laws ch. 02-82.
59 For example, compare Fla. Stat. §§732.5165 and 737.206; 733.109 (2) and 737.208 (1).
60 See supra text accompanying note 47.
61 See supra text accompanying notes 27–28 and 47.
62 See supra text accompanying notes 21–22 and 47.
63 See supra text accompanying 60.
64 See supra text accompanying notes 28 and 47.
65 Caldwell v. Division of Retirement, Florida Dept. of Admin., 372 So. 2d 438, 440 (Fla. 1979) (indicating that degree of persuasion required for the underlying substantive claim determines degree of persuasion required to overcome the applicable presumption). C. Ehrhardt , Florida Evidence §304.1 n.1 (2002 ed.).
66 C. Ehrhardt, Florida Evidence §302.1 (2002 ed.).
67 Carpenter, 253 So. 2d at 703. Although the living victim of undue influence can challenge the validity of an alleged gift/inter vivos transfer, see Rich , and testify concerning the disputed transfer, undue influence actions typically are brought after the victim’s death.
68 See supra note 26 and accompanying text.
Steven G. Nilsson is a sole practitioner in Clearwater and handles lawsuits involving wills, trusts, estates, and exploitation of the elderly. He received his B.S. from Clemson University, J.D. from the University of Arkansas Little Rock, and LL.M. in taxation from the University of Miami. The author thanks W. Fletcher Belcher for his helpful comments to this article.