When is a will or trust void? In the state of Florida, these documents are void if they are procured out of duress, fraud, coercion, overpersuasion, or undue influence.
In the case of wills and trusts, undue influence is when the person making the will (known as the testator) is made to act against his or her own wishes, and the provisions outlined in the will come from another person’s direction and desires, not those of the testator.
When an individual is aged, physically or mentally limited, or otherwise disabled, he or she may be susceptible to undue influence by a caretaker in charge of taking care of business affairs, such as writing checks or understanding complex legal documents. In cases such as these, the testator may have been controlled by pressure or influences so strong that they did not fully understand or agree to the terms of their own volition. When the caretaker then makes himself or herself the beneficiary of the will, there is the probability of undue influence.
How does Florida define undue influence?
The list of factors that the Florida courts take into consideration come directly from the Supreme Court of Florida and include the following seven questions:
- Was the beneficiary present when the will was signed?
- Was the beneficiary present when the testator expressed a desire to make a will?
- Did the beneficiary recommend the attorney who drew up the will?
- Did the beneficiary know what the will said before it was signed?
- Did the beneficiary give the attorney drawing the will instructions on how to prepare it?
- Did the beneficiary choose who would witness the will?
- Did the beneficiary keep possession of the will after it was signed?
Undue influence and elder financial fraud
When a financial advisor is named as a trustee or executor of an estate, whether it is on trust documents, wills, or powers of attorney documents, he or she is considered a fiduciary. When a fiduciary is named beneficiary of a will, there is the possibility that he or she may exert undue influence in how the assets are distributed under the will.
Undue influence is secretive by nature and can be difficult to prove. That’s why it is essential to work with an experienced estate and trust litigation attorney that can help you navigate the complexities of undue influence relating to elder financial abuse.
An experienced elder abuse attorney can help you or a family member navigate a situation that potentially involves undue influence. The Silver Law Group and our network of elder abuse resources may be able to help you and your loved one get the justice you deserve. Contact us today to discuss your options.