Most inheritance litigation involving claims of undue influence arise in the context of a will or trust contest, and most of those cases revolve around whether the primary beneficiary actively procured the contested instrument. Active procurement can be difficult to prove (or disprove) because your single most important witness, the grantor, is dead, which means we have to litigate these cases based solely on circumstantial evidence.
But what circumstantial evidence should we focus on in these cases? That question was answered in In re Estate of Carpenter, 253 So. 2d 697 (Fla. 1971), in which the Florida Supreme Court reviewed prior case law on active procurement and listed “[s]everal criteria to be considered” in determining active procurement. In effect, the court was listing the circumstantial evidence we need to consider when litigating cases involving wills challenged on undue influence grounds. These are the famous “Carpenter factors” referred to in almost every undue-influence case ever since:
- Presence of the beneficiary at the execution of the will;
- Presence of the beneficiary on those occasions when the testator expressed a desire to make a will;
- Recommendation by the beneficiary of an attorney to draw the will;
- Knowledge of the contents of the will by the beneficiary prior to execution;
- Giving of instructions on preparation of the will by the beneficiary to the attorney drawing the will;
- Securing of witnesses to the will by the beneficiary; and
- Safekeeping of the will by the beneficiary subsequent to execution
Since the same factors used to prove undue influence are also used to prove active procurement, this list is a good summary of the factors lawyers need to consider when litigating undue influence cases, especially once the evidentiary presumption is triggered and the burden of proof is flipped by F.S. 733.107(2) (see here, here).
Undue influence: testamentary vs. inter vivos (lifetime) gifts: do the same factors apply?
Here’s the problem: the Carpenter factors are specific to wills (i.e., testamentary gifts) and are of little use in the lifetime (inter vivos) gift context; and no list of indicia of active procurement for lifetime gifts has ever been adopted by our courts. Into this gap stepped Miami attorney Patrick Lannon, who in 2008 published Challenging Inter Vivos Transfers Procured by Undue Influence: Factors to Consider. Mr. Lannon argued that in reported Florida cases dealing with lifetime gifts challenged on undue-influence grounds, courts have been swayed not by the traditional indicators of undue influence, which rely heavily on the involvement of an attorney and the execution of formal documents, but by one or more of a somewhat expanded and related set of factors, namely:
- Donee’s level of involvement in the donor’s affairs;
- Donee’s level of involvement in the actual gift in question;
- Relationship of the donee to the donor as compared to the natural objects of the donor’s bounty;
- Secrecy or openness of the transaction;
- Effect of the transfer on the donor’s pre-existing estate plan; and
- Physical health and mental acuity of the donor at the time of the gift.
Estate of Kester – Undue Influence Challenge to Inter-Vivos Transfers:
Fast forward to 2013, and the 1st DCA’s decision in Estate of Kester v. Rocco, — So.3d —-, 2013 WL 3155849 (Fla. 1st DCA June 24, 2013), which I wrote about here. This case involved lifetime gifts challenged on undue influence grounds. Although the 1st DCA dutifully parroted the Carpenter factors, the outcome of the case actually turned on the lifetime-gift factors identified in Mr. Lannon’s 2008 article; which is exactly the point he made in his follow up article entitled Estate of Kester – Undue Influence Challenge to Inter-Vivos Transfers, published in the Winter 2014 edition of ActionLine. Here’s an excerpt:
Interestingly, in overturning the probate court and determining that no undue influence occurred, the court in Estate of Kester ignored most of the factors it quoted, but directly or indirectly hit on every one of the factors listed above. Among other things, the court found that:
- While Glenna had a close relationship with her mother, other heirs (siblings) also had close relationships and assisted her with various tasks (factor 1, factor 3).
- Glenna did not actively participate in the process of changing the relevant account designations (factor 2).
- For one of the accounts in question, a sibling (not Glenna) accompanied the decedent to the bank to make the beneficiary change (factor 4).
- The decedent had made various pre-death outright gifts to her children, and there was no evidence that her intended equal treatment of heirs was to be accomplished by the probate proceedings alone without reference to other gifts effective at death (factor 5). An unsigned, undated, unwitnessed “to do list” referencing contrary intentions was deemed insufficient to take precedence over the actual actions taken by the decedent.
- The decedent acted without confusion or anxiety, retained her mental faculties, and was fully aware of her actions when the accounts were changed, even shortly before death (factor 6).
While no one set of factors will ever perfectly capture the tangled web of facts present in any real-life situation involving potential inter-vivos undue influence, the guidance offered by the courts in this area is distinctly lacking. The proposed alternate factors above, however imperfect, may serve as a guide for those assisting clients where undue influence is alleged.
Mr. Lannon’s insightful analysis is gold for working litigators, and it’s the best we have until our appellate courts start doing a better job of distinguishing between testamentary and inter vivos undue influence cases. Until then, Mr. Lannon’s two articles are “must reads” for lawyers involved in any case in which a lifetime gift is challenged on undue influence grounds.