Twelve Ways of Proving the Negative and Overcoming the Carpenter Presumption of Undue Influence
Estate planning attorneys should be acutely aware of the presumption of undue influence that arises in a will contest1 after proof of certain facts set forth by the Florida Supreme Court in In re Estate of Carpenter, 253 So. 2d 697 (Fla. 1971), hereinafter referred to as the “Carpenter presumption.” The effect of the Carpenter presumption was codified and strengthened in 2002 by the Florida Legislature in F.S. 733.107(2).
way of quick review, in Carpenter, the Florida Supreme Court held that proof of a confidential relationship between a substantial beneficiary under a will and the testator2 and the beneficiary’s active procurement of the will, creates a rebuttable presumption that the beneficiary had unduly influenced the testator in the making of the will.3 The Florida Supreme Court identified seven nonexclusive facts, proof of which would constitute active procurement of the will:
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.4
These are sometimes referred to as the “seven deadly sins” of Carpenter. The court was clear that there is no specific number of factors necessary to invoke the presumption, making this a matter within the discretion of the trial court.5 Subsequently, a commentator6 has suggested that the list should be expanded to 10 factors by adding:
8) Isolating the testator and disparaging family members;
9) Mental inequality between the decedent and the beneficiary; and
10) Reasonableness of the will or trust provisions.
When the Carpenter presumption is invoked, 733.107 shifts the burden to the defendant to prove, by a preponderance, the nonexistence of undue influence.7 This article focuses on how to prove this negative.
In some cases, the existence of facts sufficient to raise the Carpenter presumption will be obvious. In those cases, it is suggested that defense counsel consider whether it makes sense tactically to stipulate to the operation of the Carpenter presumption. Such a move may result in the defense gaining credibility in the eyes of the trial judge.
When the presumption applies, 733.107(2) provides that it is the will proponent’s burden to prove the absence of undue influence. This is sometimes referred to as “proving a negative.”8 It has been suggested that such a burden is “like swatting at unseen sand flies.”9 The main objective of this article is to show that not only can this be done, but, with proper case analysis, discovery, pretrial preparation, and presentation and argument at trial, it is not as difficult as widely believed.
In reality, one defending against the Carpenter presumption should not approach the issue as proving the negative but should prove affirmatively that the testator was acting of his or her own free will. Proof of affirmative facts that create the inference of the exercise of the testator’s free will satisfy this test. The following list and discussion of anti-Carpenter factors should be of assistance to practitioners in creating an inference of the exercise of free will.
As is the case with the Carpenter factors, there is no magic number of factors needed to establish the inference of free will to overcome the Carpenter presumption. Each case will turn on its own particular facts. In general, more is better, keeping in mind the ultimate goal of persuading the trial judge of the correctness and strength of the defense’s position. While over-persuasion is considered a bad sign when utilized to procure a disputed will, over-persuasion is definitely a good thing when it comes to the quantum of proof adduced by the will proponent when the trial judge weighs the evidence to determine whether the will was procured by undue influence or, rather, was the product of the desires, intention, and free will of the testator.
The following 12 factors may be employed by a will proponent’s counsel to prove a testator’s exercise of free will, thereby overcoming the presumption of undue influence that may have arisen by proof of as few as three or four of the Carpenter factors. These factors give the will proponent a clear edge in meeting the ultimate burden of the greater weight of the evidence.
Testimony of Drafting Attorney and Witnesses to Execution of Will
In every case involving the defense of a challenged will, it is expected that the witnesses to execution of the will (including the notary) will testify that they believe the testator was exercising his or her free will at the moment the will was executed. If the witnesses made notes or prepared a memorandum after the signing, these written records may be introduced as substantiating evidence. If the witnesses kept no written records, and they do not have any independent recollection of the specifics related to the signing, employees of the drafting attorney’s office may provide evidence of the routine practices and procedures employed by the law office for will signings to establish the lack of undue influence.10 In addition, if a subscribing witness or notary is also a paralegal or legal assistant to the drafting attorney, he or she may have been present during a prior client conference and may be able to testify to the absence of undue influence and exercise of free will on a date or dates prior, but in close proximity to the date of signing.
To a greater or lesser extent, this type of testimony is expected to be present in every case. Much more important is the testimony of the drafting attorney. The First District Court of Appeal in the case of Langford v. McCormick, 552 So. 2d 964 (Fla. 1st DCA 1989), rev. denied, 562 So. 2d 346 (Fla. 1990), has described the drafting attorney’s testimony as “the most important objective evidence probative of…testamentary capacity and ability to exercise…will free of outside influence at the time [of the] will.”11 The First District’s opinion in Langford on the issue of the crucial importance of the drafting attorney’s testimony was adopted by the Third District Court of Appeal in Derovanesian v. Derovanesian, 857 So. 2d 240 (Fla. 3d DCA 2003). There, in reversing the trial court, the Third District recognized that the “Direct, … unimpeached testimony of the attorneys who drew the 1999 documents was adduced that they correctly reflected an exercise of her uninfluenced desire as to the disposition of her estate.”12
Ideally, counsel for the will proponent wants to elicit evidence from the drafting attorney on the following points:
1) The attorney met alone with the testator.
2) The testator gave explicit reasons for his or her decisions.
3) The testator had no ambiguity about his or her desires.
4) The testator expressed a clear understanding of the effect of his or her decisions.
5) The attorney kept handwritten notes. The attorney’s notes and the attorney’s estate planning questionnaire, filled out by the testator, can be introduced into evidence.
Independence of Testator and Testator’s Control of Testator’s Daily Life
In cases finding undue influence, courts frequently point to the daily dependence of the testator as evidence of a confidential relationship. Such a relationship demonstrates the fragility of the testator and the power of the caregiver over the testator. Proof that the testator lived independently, or at least relied on others in addition to or instead of the beneficiary, can prove the non-existence of undue influence.13 On this point, counsel for the alleged undue influencer will want to introduce evidence that the testator lived independently until his or her final illness; that the beneficiary lived in a distant city from that of the testator; that the beneficiary saw the testator only occasionally; and that the beneficiary had no direct control over or involvement in the day-to-day affairs of the testator.
Management of Own Affairs Until Death
Closely related to the testator’s independent with respect to daily activities is the ability of the testator to manage his or her own financial affairs, sometimes referred to as the testator’s level of mental strength or acuity. The relevance of this factor has been expressly recognized by the Florida Supreme Court in a post-Carpenter undue influence case.14
Counsel will want to adduce testimony that the testator managed his or her own finances until his or her death or final illness. If this is not the case, evidence that the beneficiary did not manage the testator’s finances will be important. An additional, parallel line of inquiry could involve testimony regarding the testator’s long-term experience in business, financial, or legal matters; general diligence in managing household finances; the reputation of the testator as a “strong-willed” person; the testator’s independent personality; and/or the testator’s reputation as someone who always made his or her own decisions and someone who was not easily influenced by the desires of others.
One attempting to influence another frequently tries to isolate him or her from family and friends. Isolation of the testator has been cited as an important factor in undue influence cases in Florida since at least 1919.15 Counsel for the will proponent should establish that the testator had regular contact with others or at least that the beneficiary took no steps to prevent the testator from having contact with any of the testator’s family members or friends.
Evidence should be introduced to establish that, at all relevant times, the testator, in fact, enjoyed regular, daily contact with friends, family, neighbors, financial advisors, bankers, old acquaintances, former coworkers, etc. Proof that the testator was able to use the phone, access email and the internet, and walk or drive to neighbors’ homes, banks, and professional offices will illustrate that the testator was not isolated. Counsel may be able to establish that, if someone were attempting to exert influence over the testator, the testator had a plethora of opportunities to seek advice and assistance from others who could be expected to intervene as needed.
In Carpenter, the Florida Supreme Court recognized the inherent “secret nature” of the dealings between the beneficiary and the testator.16 This factor (together with the death of the testator) forms the entire basis for the necessity of creating the presumption of undue influence, which the court noted is “rarely susceptible of direct proof.”17 It is very persuasive for the will proponent’s counsel to prove all actions of the beneficiary were fully transparent. If the testator’s testamentary actions were kept secret from family members, evidence should be introduced to establish that such nondisclosure was at the express and specific direction of the testator. Frequently, a testator will have a very good and logical reason for not sharing his or her testamentary actions with certain family members, such as the testator being afraid of potential reactions that might involve anger, physical, or emotional abuse, or withdrawal of support and services. In such cases, counsel can establish that the beneficiary had no control over the testator’s decisions in this regard.
No Departure from Prior Testamentary Plan
Several Florida Supreme Court decisions have looked to a departure from prior testamentary intentions as being indicative of undue influence.18 Evidence of prior written documents or verbal declarations19 is admissible to establish a consistent testamentary plan. Written documentation may exist in the form of a letter or memo prepared by the testator summarizing his or her testamentary plan or a document intended as a will but ineffective for legal reasons.
In the absence of evidence of a plan to benefit the alleged undue influencer, counsel may introduce evidence to establish the absence of a fixed intention to benefit someone other than the alleged undue influencer. In either situation, the focus for the trial court will be that the challenged will does not constitute a departure from a prior testamentary plan.
Other Financial or Testamentary Changes in Which Beneficiary Had No Involvement
Counsel for the will proponent should explore all actions taken by the testator that could have relevance to the execution of the will. For example, it may be that the testator made other changes on his or her own, with absolutely no input or involvement on the part of the will beneficiary. These changes could include the testamentary aspects relating to bank accounts, brokerage accounts, life insurance policies, retirement accounts, and pension plans, as well as nontestamentary documents, such as powers of attorney, health-care surrogate designations, etc. If the will beneficiary had no involvement in these other matters, and witnesses can establish the changes were made based solely on the instructions of the testator, evidence of the related transactions would be admissible to establish that it is, therefore, less likely that the will was the product of undue influence and more likely that it was the product of the testator’s free will.
Rejection of Beneficiary’s Other Requests, Assistance, or Suggestions
Counsel should carefully scrutinize all communications, transactions, and interactions between the beneficiary and the testator. Evidence that the testator was not controlled by the influence of the beneficiary could include evidence that the testator rejected requests, assistance offered, or suggestions by the beneficiary, whether directly related to the challenged will or related to other areas of the testator’s affairs. This evidence could consist of refusing to change financial institutions, financial advisors, professional advisors, types of investments, place of residence, attorneys-in-fact, health-care surrogates, etc.
Valid Reasons to Disinherit
In many cases, the testator will have articulated valid reasons for disinheriting one or more family members. Counsel for the will proponent should be able to elicit such proof from the drafting attorney, who presumably was diligent in documenting the file with the reasons expressed by the testator. Explanations for omitting someone from the estate plan can include a criminal record, financial mismanagement, lack of attention to or estrangement from the testator, the financial wellbeing of the intentionally omitted person, or substance abuse, or any other basis for the omission. Assuming the testator is not suffering from a delusion with regard to the excluded person, he or she is free to disinherit anyone, subject only to constitutional and statutory protections for a surviving spouse or minor child. Caselaw is clear that disinheritance can be for a good reason, a bad reason, or no reason at all (subject to the delusion exception). Verbal declarations as to the testator’s expressed basis for disinheritance can be admissible to prove the absence of undue influence and the exercise of the testator’s own free will.20
Natural or Expected Disposition
Many Florida decisions have pointed to the existence of a so-called “unnatural disposition” as a factor indicative of undue influence.21 Many will contests involve disputes between family members. In such cases, the proponent of the will may be able to establish that the challenged disposition does not fall within the scope of the traditional “unnatural disposition” line of cases. Rather, it is simply a question of the testator favoring one family member over another, which, by itself, is insufficient to prove undue influence.22 This is especially prevalent in so-called blended families in which the testator has biological children and stepchildren.
In many cases, the testator/stepparent will have been the only father or mother the stepchild/beneficiary has ever known. The bond between the testator and the stepchild may be stronger than that of the testator and the biological child, especially when the stepchild resided with the testator as a child and the biological child lived with the former spouse. In such cases, counsel for the will proponent should diligently prove all of the reasons why the stepparent knowingly and intentionally chose to benefit the stepchild at the expense of the biological issue.
Beneficiary’s Transparency In Communicating With Plaintiff Regarding Testator’s Last Illness
The Florida Supreme Court, in In re Burton’s Estate, 45 So. 2d 873, 876 (Fla. 1950), pointed to the beneficiary’s failure to inform family members of the testator’s last and other illnesses as a factor indicative of undue influence. Proof that the beneficiary openly and freely shared details of illnesses with family members would support the validity of the testamentary plan. As a result of smartphones, most people below a certain age will communicate in writing during significant life events. These communications are likely more frequent in a medical setting involving many hours of downtime spent waiting for updates and treatment. Records of these communications can establish full transparency and the absence of secrecy with regard to the testator’s medical issues.
The Dutiful Child
Several recent appellate opinions23 have held that actions of a testator’s child that could be interpreted as active procurement of a will can also be interpreted as simply the acts of a caring, dutiful offspring. Such actions should be considered desirable and not raise the level of concern as in the case of an “outsider” undertaking the same actions. According to the First District Court of Appeal in the case of Estate of Kester v. Rocco, 117 So. 3d 1196 (Fla. 1st DCA 2013), the actions of a dutiful adult child in assisting an aged parent do not even give rise to a Carpenter presumption.
A good example of the number and variety of Carpenter factors that may be overcome by assertion of a dutiful child defense is found in the Derovanesian opinion.24 There, the testatrix’s daughter assisted her mother in obtaining the drafting attorney, was present when the will was executed, was aware of the contents of the will prior to its execution, lived with her mother, and was in complete and sole control of all of her mother’s daily care and activities. Nevertheless, the validity of the will was upheld. As stated by one commentator, “[t]aking care of an elderly parent is a ‘good thing’; no one should be put on the defensive for doing what’s right.”25
Baker’s Dozen Bonus
Occasionally, defense counsel will be faced with a case in which the will contestant alleges that undue influence was exerted by the testator’s spouse. It is important in such a case to emphasize to the trial court that the Carpenter presumption of undue influence does not apply as between spouses.26 In an undue influence case involving spouses, the will contestant bears the burden throughout the entire case of proving undue influence by the greater weight of the evidence, without the benefit of any presumption.27 Counsel for the will proponent should still proceed as if the Carpenter presumption does apply, proving the 12 anti-Carpenter factors discussed previously.
This list is not intended to be exclusive. An advocate faced with the burden of refuting the Carpenter presumption should do more than try to prove the negative. He or she should seek affirmative evidence that establishes the inference that the testator exercised his or her own free will.
1 All references to “will” and “will contest” are intended to include trusts and trust contests.
2 All references to “testator” are intended to include “testatrix.”
3 In re Estate of Carpenter, 253 So. 2d at 702.
6 David P. Hathaway, Make It an Even 10: Courts Rely on More Than the Seven Carpenter Factors to Analyze a Claim for Undue Influence of a Will or Trust, 83 Fla. Bar J. 87 (June 2009).
7 Diaz v. Ashworth, 963 So. 2d 731 (Fla. 3d DCA 2007), rev. denied, 973 So. 2d 1120 (Fla. 2007); Steven G. Nilsson, Florida’s New Statutory Presumption of Undue Influence — Does it Change the Law or Merely Clarify? 77 Fla. Bar J. 20 (Feb. 2003); Larry P. Studer, Challenging Transactions of a Decedent, 89 Fla. Bar J. 4 (Apr. 2015).
8 See, e.g., Holl v. Talcott, 191 So. 2d 40, 43 (Fla. 1966).
9 Hicks v. State of Florida, 407 So. 2d 252, 256 (Fla. 5th DCA 1981) (Cowart, J., Dissenting).
10 Fla. Stat. 90.406.
11 Langford, 552 So. 2d at 969.
12 Derovanesian, 857 So. 2d at 242.
13 Langford, 552 So. 2d at 969.
14 Cripe v. Atlantic First National Bank of Daytona Beach, 422 So. 2d 820 (Fla. 1982).
15 See, e.g., In re Estate of Lamberson, 407 So. 2d 358 (Fla. 5th DCA 1981) (beneficiary moved decedent into beneficiary’s home; failed to notify family; refused to disclose decedent’s whereabouts to friends; became sole figure in decedent’s life); In re Estate of Winslow, 147 So. 2d 613 (Fla. 2d DCA 1962) (isolation of testator from niece and intercepting niece’s letters); In re Ates’ Estate, 60 So. 2d 275 (Fla. 1952) (denial of access to family during last months of life); In re Auerbacher’s Estate, 41 So. 2d 659 (Fla. 1949) (access by testator’s sons denied and nonattendance at family Christmas dinners); Newman v. Smith, 82 So. 236 (Fla. 1919) (denial of access to testator’s daughter and destroying “ties of fatherly affection”).
16 Carpenter, 253 So. 2d at 703.
18 In re Burton’s Estate, 45 So. 2d 873 (Fla. 1950); Watts v. Newport, 149 Fla. 181, 9 So. 2d 417 (Fla. 1942); Newman, 82 So. at 236.
19 In re Burton’s Estate, 45 So. 2d at 875 (verbal declarations admissible to show testator’s previously expressed fixed purposes and intentions).
20 Fla. Stat. 90.804.
21 See, e.g., Peacock v. Du Bois, 105 So. 321 (Fla. 1925) (disinheritance of children in favor of a young man the testatrix barely knew); In re Ates’ Estate, 60 So. 2d at 279.
22 See, e.g., Derovanesian v. Derovanesian, 857 So. 2d 240 (Fla. 3d DCA 2003), rev. den. 868 So. 2d 522.
23 Estate of Kester v. Rocco, 117 So. 3d 1196 (Fla. 1st DCA 2013); Zoldan v. Zohlman, 915 So. 2d 235 (Fla. 3d DCA 2005); Derovanesian, 857 So. 2d at 240; Carter v. Carter, 526 So. 2d 141 (Fla. 3d DCA 1988).
24 Derovanesian, 857 So. 2d at 241.
25 Juan C. Antnez, First DCA: Does a Dutiful Adult Child Caring for an Elderly Parent = Undue Influence?, Probate & Trust Litigation Blog (July 29, 2013), www.FLprobatelitigation.com/2013/07.
26 Jacobs v. Vaillancourt, 634 So. 2d 667 (Fla. 2d DCA 1994); Tarsagian v. Watt, 402 So. 2d 471 (Fla. 3d DCA 1981); In re Estate of Knight, 108 So. 2d 629 (Fla. 1st DCA 1959); Goertner v. Gardiner, 125 Fla. 477, 170 So. 112, reh’g. den. 126 Fla. 412, 170 So. 844 (Fla. 1936).
27 Blits v. Blits, 468 So. 2d 320 (Fla. 3d DCA 1985).
LARRY E. CIESLA is a sole practitioner in Gainesville, admitted to The Florida Bar in 1979, practicing in the areas of estate planning, probate and trust administration, elder law, real property, and related litigation. He began working on his first will contest case in 1980.
JACK M. ROSS is a partner in the firm of Siegel, Hughes & Ross in Gainesville. He graduated from the University of Virginia Law School in 1978 and was admitted to The Florida Bar in 1980. He specializes in business, financial, and probate litigation and is board certified in civil trial practice.
Ciesla and Ross have been collaborating on prosecution and defense of will and trust contests for 25 years.
This column is submitted on behalf of the Real Property, Probate and Trust Law Section, Debra Lynn Boje, chair, and Douglas G. Christy and Jeff Goethe, editors.