What is Undue Influence?

Frequently, you will have a case where one particular child looks after a parent during the parents’ lifetime, and the parent winds up favoring that child in a will, or in some cases, outside of a will, such as leaving them bank accounts or life insurance policies.
And, sometimes, the other children will cry “foul”, and accuse the child who looked after the parent of “undue influence”, or influencing the parent to leave that child a disproportionate share of the estate.
This can be a tough call; I discuss undue influence here:

How to Contest a Will in Florida

And as you can see, some things that you would expect to see where a child is looking after a parent; transporting the parent to the lawyer or the bank, maybe making initial contact with the lawyer, maybe simply being aware of the existence of the estate plan, could be seen as giving rise to undue influence.
A recent case out of one of the Florida appellate courts discusses this scenario:

Kester v. Rocco

The court focused on the fact that “Undue influence must amount to ‘over persuasion, duress, force, coercion, or artful or fraudulent contrivances to such an extent that there is a destruction of free agency and willpower of the testator.’”

It’s not the fact that there is a relationship between the parent and the child, you need more than that; that “Evidence merely that a parent and an adult child had a close relationship and that the younger person often assisted the parent with tasks is not enough to show undue influence” but that you need to show something further; essentially that the parent had no will of their own but was acting at the direction of the child.

In the case above, the court looked at whether the mother was competent, whether she seemed overwhelmed by her daughter, whether she distributed other assets before her death to other children.

The point I’m getting at is, just because a parent favors a child who looked after them in a will or outside a will does not mean that the child exerted undue influence.
If you have questions about will contests or undue influence in Florida, please feel free to contact my office, conveniently located just North of The Villages, Florida.

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