Orlando litigator David P. Hathaway tackled the issue from an interesting perspective in a June 2009 Florida Bar Journal article entitled Make It an Even 10: Courts Rely on More Than the Seven Carpenter Factors to Analyze a Claim for Undue Influence of a Will or Trust.
David’s thesis is that probate litigators need to think beyond the seven Carpenter factors we all know and love.
In addition to the seven Carpenter factors, however, Florida law recognizes at least three other indicators of active procurement: a) isolating the testator and disparaging family members; b) mental inequality between the decedent and the beneficiary; and c) the reasonableness of the will or trust provisions. This article analyzes the case law surrounding these additional factors to assist practitioners in fully developing a case for or against undue influence.
And here’s how David goes on to introduce each of these factors:
Isolating the Testator and Disparaging Family Members
As early as 1919, the Florida Supreme Court found undue influence where a beneficiary purposefully isolated the decedent by denying access to family and friends, with hopes of breaking down whatever ties of affection existed between the decedent and his family and friends.9 In Newman v. Smith, 82 So. 2d 236 (Fla. 1919), a beneficiary of a will had intercepted letters and telegrams sent to the decedent by his daughter, ignored all requests contained within them, and responded only to prevent the decedent’s daughter from visiting the decedent.10 The beneficiary’s isolation of the decedent denied the daughter all access to the decedent, such that “the ties of fatherly affection [were] destroyed.”11 The court stated that based on these facts, it would have invalidated the will on the grounds of undue influence alone without any evidence of lack of testamentary capacity.12
Mental Inequality Between the Decedent and the Beneficiary
Florida courts have considered the inequality of mental acuity between the decedent and beneficiary to determine whether a will was procured by undue influence. Although this factor is similar to the issue of voiding a will for lack of testamentary capacity, it differs in that it assumes the decedent does have testamentary capacity, but is weak-minded and, therefore, easily influenced. Essentially, the factor compares the decedent and the influencer rather than merely evaluating the testamentary capacity of the decedent.
Reasonableness of the Will or Trust Provisions
A sometimes obvious sign of undue influence in the procurement of a will or trust is the instrument itself. The 1919 case of Newman v. Smith, discussed earlier, stated that a suspicion of undue influence was inevitable because the will seemed to contradict, ignore, and disregard the promises and assurances made by the decedent to his needy child, yet provided substantial bequests to an “affluent wife, held in slight regard.”47 In Newman, the decedent had promised and assured his beloved daughter that he would provide for her upon his death and had an original will reflecting such intent.48 However, this “equitable, rational, and just” will was replaced by a subsequent will which disinherited the daughter and devised all of the decedent’s property to his affluent wife.49 The Florida Supreme Court stated that a will should not be revoked “merely because it is unreasonable and unjust.” However, where “it does violence to the natural instincts of the heart, to the dictates of fatherly affection, to natural justice, to solemn promises, to moral duty, such unexplained inequality and unreasonableness is entitled to great influence in considering the question of testamentary capacity and undue influence.”50 The court also stated “[i]n doubtful cases the reasonableness or not of a will, in its various provisions is entitled to great weight.”51