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Recognize the signs of undue influence

| Feb 13, 2019 | Civil Litigation |

Undue influence refers to the use of a person’s position of power to persuade or pressure a person to do something he or she would otherwise not have done had the influence not occurred. Typically, the action the influencer convinces the other person to take goes against the victim’s best interests and benefits the influencer in some way. When undue influence occurs in relation to a will in Florida, it is typically to take money or property that should go to another beneficiary.

Elder Protection Center provides 12 signs of undue influence for which individuals can watch out. This post details just a few of them.  

If a person who is not the natural object of an individual’s love and affection gives gifts to that person, it may be because he or she wishes to persuade him or her to revise his or her will. If a testator loans money to a person but does not have documentation of the loan, the lending may be a result of undue influence.

Another sign of undue influence is if a person’s fiduciary takes an action that reflects poor judgment or conflict of interest. Issues of undue influence may arise when estate planning documents name non-family members as beneficiaries or fiduciaries. The same can be said for when a testator has a joint bank account with an unrelated individual.

Undue influence may be an issue if evidence exists that an elder or incapacitated individual signed a check prepared by another. If bequest plans favor one child over other surviving children, it may be because of undue influence. This is especially true if the favored child lives with the elderly individual. One should also worry about undue influence if there is evidence that an elderly or incapacitated individual becomes overly dependent on a child or other person.

According to Forbes, there are ways in which loved ones can react to undue influence. For one, a person can speak up. If a potential influencer knows that others suspect his or her wrongdoing, he or she may back off. Concerned individuals can also increase their contact with the supposed victim and ask the aging or incapacitated individual for access to his or her bank account. This final measure allows a person to monitor spending and withdrawal behavior and put a halt to suspicious activities.

Under Florida case law, a person who actively procured a Will gives rise to a rebuttal presumption of undue influence. Several criteria to be considered in determining active procurement are as follows:

1. Presence of the beneficiary at the execution of the will;

2. presence of the beneficiary on those occasions when the testator or testatrix 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 of the will;

5. Giving 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. Safe keeping of the will by the beneficiary subsequent to execution.