How a will contest is framed can make all the difference in the world.  If the will is being challenged on undue influence grounds, you can forget ending the case at a summary judgment hearing once the “presumption” of undue influence is established, as the parties in this case learned the hard way.

RBC Ministries v. Tompkins, — So.2d —-, 2008 WL 398821 (Fla. 2d DCA Feb 15, 2008):

The probate court in this case ruled differently, and was reversed on appeal.  The following excerpts from the linked-to opinion sum up the 2d DCA’s analysis of the controlling Florida law on this point.

The rebuttable “presumption of undue influence implements public policy against abuse of fiduciary or confidential relationships and is therefore a presumption shifting the burden of proof.” § 733.107(2), Fla. Stat. (2005). Such a presumption “affecting the burden of proof”-as distinct from a presumption affecting the burden of producing evidence-“imposes upon the party against whom it operates the burden of proof concerning the nonexistence of the presumed fact.” § 90.302(2), Fla. Stat. (2005). Accordingly, once a will contestant establishes the existence of the basis for the rebuttable presumption of undue influence, the burden of proof shifts to the proponent of the will to establish by a preponderance of the evidence the nonexistence of undue influence. Diaz v. Ashworth, 963 So.2d 731, 735 (Fla. 3d DCA 2007); Hack v. Janes, 878 So.2d 440, 443-44 (Fla. 5th DCA 2004).

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“[O]nce the presumption arises, the undue influence issue cannot be determined in a summary judgment proceeding.” Allen v. In re Estate of Dutton, 394 So.2d 132, 135 (Fla. 5th DCA 1981). “[A] summary judgment cannot be entered in favor of one who has the burden of overcoming the presumption of undue influence for such proceeding does not afford the contesting party the right of cross-examination and an opportunity to present rebuttal testimony.” Knight v. Knight (In re Estate of Knight), 108 So.2d 629, 631 (Fla. 1st DCA 1959). Instead, “the proponent of the contested will must come forward with a reasonable explanation of his active role in the decedent’s affairs,” and “the trial court is left to decide the case in accordance with the greater weight of the evidence.” Allen, 394 So.2d at 135.

Lesson learned?

In an undue-influence case, establishing the presumption of undue influence doesn’t just shift the burden of proof, it forecloses the prospect of a quick win on summary judgment for the proponent of the will.  Understanding this point is key to understanding how high the stakes are – for both sides – once a court is asked to rule on whether the presumption’s been triggered.