In a proceeding contesting the validity of a will, the proponent of the will only has the burden to establish that the will was executed with the required formalities.  The burden then shifts to the contestant to establish the will’s invalidity.

In cases contesting the validity of a will on the basis of undue influence, the contestant must prove undue influence by the greater weight of the evidence, unless the contestant can show sufficient facts to raise a presumption of undue influence.  This is known as the Carpenter’s exception.  In Florida, the presumption of undue influence arises when:

1. A substantial beneficiary under a will,
2. Occupies a confidential relationship with the decedent, and
3. Is active in procuring the contested will.

The term “confidential relationship” is very broad and arises whenever one person trusts and relies in another.  Thus, a confidential relationship can be both formal, such as a fiduciary relationship, or informal, such as a social or personal relationship.

Courts examine the following non-exclusive criteria to determine active procurement:

1. Presence of the beneficiary at the execution of the will;
2. Presence of the beneficiary on those occasions when the testator expressed a desire to make a will;
3. Recommendation by the beneficiary of an attorney to draw the will;
4. Knowledge of the contents of the will by the beneficiary prior to execution;
5. Giving instructions on preparing the will by the beneficiary to the attorney drawing the will;
6. Securing of witnesses to the will by the beneficiary; and
7. Safekeeping of the executed will by the beneficiary.

A contestant is not required to prove each of the above criteria to establish active procurement.  “Each case is fact specific and the significance of any (or all) of such criteria must be determined with reference to the particular facts of the case.”

Once the contestant establishes that the Carpenter exception applies, the presumption of undue influence arises.  The burden of proof then shifts to the proponent of the will to establish by a preponderance of the evidence the nonexistence of undue influence.  In other words, the proponent must come forward with a reasonable explanation for his or her active role in the decedent’s affairs.

If the proponent can successfully show a reasonable explanation for his or her role in the decedent’s affairs, then the court is left to determine the validity of the will according to the greater weight of the evidence.

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