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Where the Presumption of Undue Influence Should Not Apply: Consider the “Dutiful Son” and the “Dutiful Daughter” Exceptions

Real Property, Probate and Trust Law

More than 30 years ago, our Florida Supreme Court in In re Carpenter, 253 So. 2d 697 (1971), outlined relevant factors that could be used to show undue influence over a testator. These factors, which are commonly referred to as the Carpenter factors, focus on the circumstantial evidence that is often seen in undue influence cases. Having a list of factors that may allow one who is attacking the validity of a testamentary document to create a presumption of undue influence that shifts the burden of proof to the defendant dramatically changed the playing field in probate and trust litigation. Because undue influence often occurs in private, away from family members or witnesses, the Supreme Court recognized that public policy interests supported shifting the burden to the person being accused of undue influence to come forward with reasons why their actions were proper.

Generally, the issue of undue influence is not ripe until after a testator of a will or a grantor of a trust has passed away, eliminating one of the key witnesses in the case. The person who benefited from the disputed testamentary document will, of course, defend the document. Oftentimes, the witnesses that participate in a will or trust signing do not know much about the circumstances under which the document was prepared, or the preceding events. No lawyer who prepared a document being attacked could be expected to testify that he or she believed the client signed the document under the influence of another. If that were the case, the attorney would face ethical and liability issues facilitating the execution of the document.

Undue influence is presumed when 1) a person with a confidential relationship with the testator; 2) was active in procuring or securing the preparation or execution of the devise; and 3) is a substantial beneficiary thereof. Under Carpenter, the Supreme Court laid out the following nonexclusive list of factors that, if present, may show a presumption of undue influence: 1) presence of the beneficiary at the execution of the document in question or at the occasions where the testator expressed desire to devise; 2) the beneficiary’s recommendation of an attorney to prepare the document in question; 3) the beneficiary’s knowledge of the document’s contents prior to its execution or the occasions where the testator expressed desire to devise; 4) the beneficiary giving instructions to the drafting attorney; and 5) the beneficiary securing witnesses and safekeeping of documents after execution.

In Hack v. Estate of Helling, 811 So. 2d 822, 826 (Fla. 5th DCA 2002), another factor was added — the inequality of mental capacity and strength between the testator and beneficiary. The presumption of undue influence under the Florida Evidence Code permanently shifts the burden to the defendant during the case to prove why he or she did not commit undue influence. The presumption of undue influence is a burden shifting presumption under F.S. §90.304 because Florida has a strong public policy against undue influence. Thus, if a litigant is able to establish a presumption of undue influence, not only is the conclusion of undue influence presumed, but the burden is shifted to the defendant to prove, by a preponderance of the evidence, that there was no undue influence.

From the plaintiff’s perspective, employing the Carpenter factors to raise a presumption of undue influence and shift the burden of proof is a powerful strategy to win an undue influence case. However, the Third and First District courts of appeal have carved out a significant defense to the presumption of undue influence when children and parents are involved. The cases of Carter v. Carter, 526 So. 2d 141 (Fla. 1st DCA 1988), the “dutiful son case,” and Estate of Kester v. Rocco, 117 So. 3d 1196 (Fla. 1st DCA 2013), the “dutiful daughter case,” outline a defense to the presumption of undue influence that every practitioner should know about and which may prevent the application of the presumption and burden shifting normally available when the Carpenter factors are shown.

The dutiful son case of Carter is a natural extension of the long-established rationale for the rule that the presumption of undue influence does not apply where a disappointed beneficiary claims undue influence against a surviving spouse. In Tarsagian v. Watt, 402 So. 2d 471 (Fla. 3d DCA 1981), the Third District found that a late marriage by an octogenarian man to his wife that ended when he passed two years later did not allow a presumption of undue influence to apply in a will contest filed by the man’s disappointed children who were left out of their father’s estate plan. The Third District, citing earlier precedent, held that Carpenter’s presumption of undue influence did not apply to spouses in a will contest.

In Carter, the Third DCA found that there was no “undue” influence by a son over his mother regarding her testamentary documents. In Carter it was undisputed that the son, James, shared a confidential relationship with his mother. It was also undisputed that James was the personal representative of his father’s estate and that his father predeceased his mother. James was sued for undue influence by his brother’s ex-wife and son. James’ brother, Carl, had been left a one-third share of his mother’s estate that had been changed from a previous devise that left Carl’s one-third share to him, his ex-wife, and his four children.

The plaintiffs argued that James unduly influenced his mother to change her will to benefit his brother, Carl. It was undisputed that James’ mother looked to him for assistance, and the two had discussed making changes to her will. James’ mother told him that she wanted to change her will to remove Carl’s ex-wife and children, and James had his attorney draw up the changes. James then reviewed the changes with his mother, and left the document with her for her to consider executing. A few days later Carl, who lived near his mother, took her to the lawyer’s office where the mother executed the will prepared by James’ attorney in the presence of two disinterested witnesses.

The court found that James and Carl acted as “dutiful sons who helped their mother draw up her will and execute it.”[1] The court further noted that both sons helped their mother with her property and affairs and gave her advice and saw to it that her physical needs were met.[2] Although the court noted there could be instances where a child unduly influences a parent, these facts did not amount to undue influence.

Relying upon Carter, the Second District reaffirmed the principle that the presumption of undue influence does not apply in will contests involving a spouse, and applied the “dutiful child” exception to a son-in-law/mother-in-law situation. The Second District held in Jacobs v. Vaillancourt, 634 So. 2d 667 (Fla. 2d DCA 1994), the presumption of undue influence would not apply in will contests where a spouse is accused of undue influence due to the naturally close relationship between spouses. Ms. Jacobs directed her son-in-law attorney, Robin Vaillancourt, to draft an irrevocable trust that benefited Mrs. Jacobs’ husband during her life, then to Mrs. Vaillancourt’s daughter (Mr. Vaillancourt’s wife) upon Mr. Jacobs’ death. Mr. Jacobs agreed to the plan, signed the trust (along with Mrs. Jacobs) and the necessary paperwork to fund the trust. After Ms. Jacobs passed, Mr. Jacobs sued to set aside the documents based on undue influence by Mr. Vaillancourt and by his wife, Mrs. Jacobs, among other theories.

In rejecting Mr. Jacob’s claims, the Second District relied upon the rationale in Tarsagian that spouses naturally have influence over each other because of the confidential relationship and such relationship does not raise the presumption of undue influence. Furthermore, as to the allegations of undue influence against Mr. Vaillancourt, the Second District rejected any presumption of undue influence against him. In so doing, the court specifically cited to the Carter case and stated: “If members of a family cannot discuss these matters without it being considered improper active procurement, we have finally demolished the family ties of love and natural affection.”[3] Thus, in Jacobs, the dutiful son case was extended to facts involving a dutiful son-in-law.

Of course, it should be no surprise that the exception for the dutiful son equally applies to a dutiful daughter. In Estate of Kester v. Rocco, two of decedent’s five children sued the decedent’s daughter, who was also her personal representative, for undue influence arising from change of beneficiary designations on two accounts and an annuity that excluded the two plaintiffs. In rejecting the claim of undue influence, the First District cited Carter in finding that the plaintiffs failed to raise the presumption of undue influence. In so finding, the court relied upon the fact that the daughter had a very close relationship with her mother and assisted her with her matters, acted as her power of attorney, and discussed her mother’s specific intentions regarding the disposition of the mother’s property.[4] The court found that “where communications and assistance are consistent with a dutiful adult child towards an aging parent, there is no presumption of undue influence.”[5]

It is apparent why the presumption of undue influence does not apply in situations involving a spouse helping a spouse and dutiful children helping a parent. In such specific, natural, and common family relationships, the Carpenter factors will always be present and it is unfair to give the plaintiff in any will or trust contest the definitive advantage that the presumption of undue influence affords. It is equally likely in such natural positions of confidence and trust that a spouse or dutiful child would be involved in a settlor’s or testator’s affairs. As a matter of public policy, our society should encourage family members to faithfully assist their spouses and parent in such situations. Other evidence of undue influence is admissible to prove over reaching, and indeed there are cases in which a spouse (particularly a second spouse) or a child does take advantage of a family member. Nevertheless, such situations should not be presumed in the same manner as if a neighbor, caretaker, or acquaintance were performing the same acts.

The question of whether the Tarsagian and Carter/Kester principles should apply to situations other than marriage or a dutiful child is likely to be raised. With the decline of marriage and the rise of cohabitation, whether Tarsagian case should be extended will soon be decided. Why should partners who have lived together for years, with all the appearances and norms of a marriage, not be protected against the presumption of undue influence? Should the presumption of undue influence apply to the same facts simply because the couple is unmarried? If so, where does one draw the line? Is a 10-year relationship the same as a marriage, but a one-year relationship is not?

A bright-line test (i.e., whether there was a marriage) is the easiest test to apply, but is it the fairest? Furthermore, should the dutiful daughter and dutiful son cases be extended to dutiful stepchildren given the rise of blended families? Should these concepts be only applied if the parent legally adopted the stepchild? The answers to these questions should be made on a case-by-case basis. Indeed, for reasons of public policy, we should encourage family members who have close natural ties to a parent or parent figure, whether natural, adoptive or otherwise to help without fear of being disadvantaged in a subsequent lawsuit alleging undue influence. A fact specific, case-by-case approach allows judges the flexibility to consider whether the length, nature, and attributes of each particular relationship fall within the Tarsag or Carter/Kester exceptions to the Carpenter presumption.

In conclusion, the Carpenter case advances the public policy that persons who take advantage of confidential relationships for their financial gain should be presumed to have committed undue influence and have the burden to show their actions were proper. The same presumption should not, however, apply where spouses or partners are involved in each other’s estate plan, as such involvement is in most cases natural and appropriate. Likewise, caselaw has made exceptions for the dutiful child that takes care of a parent and helps that parent with his or her affairs. It is repugnant to presume that acts of undue influence have been committed where a child has a history of caring for an aged parent, especially where other family members have not. Similarly, the dutiful child exception, like the spouse exception, should apply in “marriage-like” situations with live-in companions and children who care for a stepparent, regardless of whether a formal legal relationship exists. Judges are best situated to adjudicate, on a case-by-case basis, what factual situations should warrant the application of the Carpenter presumption and what facts should support applying or extending the Carter/Kester exceptions.

[1] Carter, 526 So. 2d at 143.

[2] Id.

[3] Jacobs, 634 So. 2d at 672.

[4] Estate of Kester, 117 So. 3d at 1199-1200.

[5] Id. at 1200.

Alexander S. Douglas IIAlexander S. Douglas II is a partner with ShuffieldLowman in Orlando and heads its Fiduciary Litigation Department. He is a graduate of Washington University and Florida State University College of Law. Douglas is active with the Real Property, Probate and Trust Law Section of The Florida Bar and the Orange County Bar’s Estate, Trust and Guardianship Committee. He lectures frequently on probate and trust litigation topics.

This column is submitted on behalf of the Real Property, Probate and Trust Law Section, William Thomas Hennessey III, chair, and Douglas G. Christy and Jeff Goethe, editors.

Real Property, Probate and Trust Law