Navigating the Carpenter Presumption: Court-Made Exceptions to the Carpenter Case and The Statute That Followed.
In the 1971 Florida case of In re Carpenter’s Estate, The Supreme Court of Florida held that an individual who has helped to facilitate an estate plan will be presumed to have exercised undue influence in effectuating the plan, and will therefore have the burden of proof in defending a plan that was to his or her unnatural advantage.
The most common example of the application of the “Carpenter Presumption” is when a child or neighbor brings an individual to a lawyer’s office and helps to explain that the individual wishes to leave their assets to this helpful child or neighbor.
Even if the lawyer sends the individual out of the room and they sit in the lobby, the fact that the child or neighbor brought the person to the lawyer’s office, helped communicate the desired change, and brought the individual home after the visit are all factors in determining whether the Carpenter Presumption applies.
In 2002, the Florida legislature enacted Florida Statute Section 733.107, which codified the Carpenter Presumption.
In Carpenter, The Florida Supreme Court held that when a person occupies a confidential relationship with the testator, is a substantial beneficiary of the will, and is active in procuring the contested will, a presumption of undue influences arises. The court set out a list of seven nonexclusive factors to be considered in determining whether undue influence is presumed, and these are as follows:
- 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.
In addition to the seven Carpenter factors, one commentator has observed that Florida case law has recognized at least three other factors that indicate undue influence: isolating the testator and disparaging family members; mental inequality between the decedent and the beneficiary; and the reasonableness of the will or trust provisions.[1]
Disparaging Family Members and Isolating the Testator
The Florida Supreme Court has recognized that isolation of the testator and disparagement of other family members is a strong indicator of undue influence on at least three occasions.[2] In the case of In re Ates’ Estate, a child beneficiary with exclusive control over the decedent took measures to deny other beneficiaries of the decedent’s family access to the decedent in the months preceding his death. The child who isolated the decedent also spread false accusations to the decedent, stating that the other beneficiaries had been responsible for stealing the decedent’s cattle. In holding that undue influence existed, the court stated:
Some of the essential steps in asserting undue influence upon a person against those for whom he has love and in whom he has confidence is for some other person (1) to have access to the person to be influenced, (2) to administer to the needs and wants and wishes of such person, (3) to keep those for whom the person to be influenced has love for and confidence in away from the person to be influenced, (4) to establish a confidential relationship, and (5) to tear down this love and confidence by insinuations and accusations.
Mental Inequality Between Beneficiary and Decedent
Mental inequality between the decedent and the beneficiary has also been a pertinent factor used by Florida courts to determine whether undue influence existed in the procurement of an estate plan. In addition to applying the Carpenter factors, the Florida Supreme Court in Cripe v. A. First Nat. Bank of Daytona Beach, 422 So. 2d 820 (Fla. 1982) observed that “Where there is such inequality of mental strength, active procurement can be shown by evidence, as there was here, of a request or suggestion by the dominant party.”
Reasonableness or Unreasonableness of the Will or Trust
The reasonableness of a will or trust has likewise been a relevant factor adopted in Florida for evaluating whether undue influence exists in a particular case. In Ates’ Estate described above, the Florida Supreme Court also included the reasonableness of the will in evaluating whether undue influence existed. There, in addition to the isolation of the testator and disparagement of other family members, the court found the unreasonableness of the will relevant to the analysis because three of the decedent’s ten children had been disinherited entirely.
The current statute on the presumption of undue influence is set forth in its entirety below.
733.107. Burden of proof in contests; presumption of undue influence
(1) In all proceedings contesting the validity of a will, the burden shall be upon the proponent of the will to establish prima facie its formal execution and attestation. A self-proving affidavit executed in accordance with s. 732.503 or an oath of an attesting witness executed as required in s. 733.201(2) is admissible and establishes prima facie the formal execution and attestation of the will. Thereafter, the contestant shall have the burden of establishing the grounds on which the probate of the will is opposed or revocation is sought.
(2) In any transaction or event to which the presumption of undue influence applies, the presumption implements public policy against abuse of fiduciary or confidential relationships and is therefore a presumption shifting the burden of proof under ss. 90.301-90.304.
As with almost every statute that covers issues and human relationship circumstances involving estate planning, some courts have found ways to avoid application of this statute, particularly in circumstances where a person with a naturally close relationship to the testator, such as a child or spouse is performing “perfunctory physical activities” for the testator rather than “active procurement.”[3]
Probate and trust litigation attorney, Robert Persante, has had this to say about the Carpenter Presumption and the applicable exceptions:
So I think the first thing is why do these factors exist? So the cases of, for years talked about the secret nature of undue influence, the fact that it's done in secret nobody says, Hey, I'm going to go over to aunt Maggie's and unduly influence her, and spread lies about you.
You won't be able to tell whether I'm telling the truth and not she'll get angry. And then I'm going to inherit. You're going to get cut out. All of this stuff is done in secret. And so courts in order to deal with that said, let's come up with a set of objective factors. And if enough of these factors are present and there's no definitive number, then we're going to say that the burden then shifts to the person who's accused of undue influence to overcome that burden…
So then what happened was there were some isolated courts and the concern is that it's, it's beginning to catch on that have, that have come up with the concept of the dutiful son or dutiful daughter. Dutiful Son-in-law dutiful Daughter-In-Law. And what they say is, if this is a person who has been dutiful, who has always done things for mom or dad or grandma, or whatever, has always been an integral part of their life, how can we then take what is normal and natural for them to be doing and turn it into factors that shift the burden against them and a number of lawyers here that I have spoken to them said, Hey, I had a case, I had all of the carpenter factors in my favor and so forth. And the judge said, dutiful daughter, dutiful son. I'm not applying any of that.”
In Carter v. Carter, The Third District Court of Appeals found that there was no undue influence present where one of the testator’s sons aided the testator in changing her will to restore one of her other son’s original share.
In 1971, the testatrix executed a will leaving the residue of her estate to her three sons in equal shares. In 1975, a codicil was added to the will which eliminated the one-third share to her son Carl and divided it equally among him, his former wife and four children. in 1983, the mother then executed a will with the help of her son James that returned the inheritance scheme to that of the 1971 will. The mother died in 1985. Carl’s former wife and children brought claims to revoke probate of the 1983 will, arguing that Carl and James held undue influence over their mother when that will was executed. The trial court revoked the 1983 will, concluding that the mother was unduly influenced by her sons when she signed the will.
On appeal, the Third District Court of Appeals held that neither Carl or James’s actions amounted to “active procurement” as required for to prove undue influence under Carpenter. The court went on to state that James and Carl had acted as “dutiful sons who helped their mother draw up her will and execute it… [w]hile we readily acknowledge that there will be instances in which a child or parent may unduly influence one or the other in procuring a will, we hold that on the facts of this case, neither the conduct of Carl nor that of James amounted to undue influence.”
In Jacobs v. Vaillancourt, the Second District Court of Appeals, relying on Carter, found that the presumption of undue influence did not apply in a will contest where a spouse is accused of undue influence based on the naturally close relationship between spouses.
Following the death of his wife, Mr. Jacobs challenged the validity of certain trust documents executed prior to Mrs. Jacobs’ death that created an irrevocable trust for the ultimate benefit of Mrs. Jacobs’ daughter, Judith, from a previous marriage. The trust documents were executed by Mrs. Jacobs’ son-in-law and Judith’s husband, Robin Vaillancourt. Mr. Jacobs claimed that the documents should be declared void based on undue influence by Judith and Robin Vaillancourt.
In agreeing with the trial court that no undue influence existed, the Second District Court of Appeals found that there was no evidence that Judith was active in procuring the instruments or that she was even aware of their preparation until after they were executed by Mr. and Mrs. Jacobs. Similarly, the court found that there was no evidence that the son-in-law attorney was active in procuring the execution of the will, he had only responded to a request for help and performed the duties requested of him.
The court further noted the following:
We agree with our sister court who said in effect in Carter that it is quite natural, and certainly not intrusive, for members of a family, including a son-in-law to discuss with his mother-in-law any changes she might desire in her will. If members of a family cannot discuss these matters without it being considered improper active procurement, we have finally demolished the family ties of love and natural affection.
Thus, in Jacobs, the Second District Court of Appeals extended the dutiful child exception to dutiful-children-in-law.
Carpenter and the statute that followed further an important public policy interest by creating a presumption of undue influence by individuals who have taken advantage of a confidential relationship for their substantial benefit and making them bear the burden of proof to show that no undue influence existed. The court-made exceptions to Carpenter indicate that where involvement in the estate plan by children or spouses is natural and appropriate, no such public policy is furthered by placing a burden of proof on the naturally and closely related child or spouse.
Lawyers who represent individuals who may be subject to undue influence have many choices with respect to how to proceed with representation of a client.
Clients who know what they want and wish to make their own decisions can be offended when a lawyer suggests that their good friend or closest family member should not be involved with their estate planning, and might be accused of undue influence or even financial exploitation and abuse of the infirm or elderly, which is a felony in Florida.
Go to Jail – Do Not Collect $200
Financial exploitation of the elderly can result in a criminal conviction of elderly abuse in Florida. The elements necessary to be convicted of the crime of exploitation of an elderly person or disabled adult are as follows: (1) the victim must be an elderly person or disabled adult; (2) the defendant must have knowingly obtained or endeavored to obtain or use the victim’s funds, assets, or property; (3) the defendant must have done so with the intent to either temporarily or permanently deprive the victim of the use, benefit, or possession of his or her fund, assets, and property, or benefit someone other than the victim; (4) the offense must have been committed at the time the defendant stood in a position of trust and confidence or had a business relationship with the victim.[4]
Every police department in the State of Florida has a detective assigned to investigate elderly abuse.
Professionals who allow this type of abuse to occur risk being sued by excluded beneficiaries and being considered to be conspirators.
The human phenomena of taking advantage of people, or trying to help people, and not being sure which is which makes for complicated laws and a great many questionable situations that tear apart relationships and cost families some or all of an inheritance in legal fees. Florida’s law in this area will doubtlessly continue to develop, as many caring professionals live as best they can in challenging situations that often present themselves.
Special thanks goes to Stetson Law School student Brock Exline for his assistance in research for this post.
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