Blinn vs. Carlman & Blinn

The final judgment invalidating the April 2, 2008 will based on undue influence is supported by substantial competent evidence and, thus, we affirm. Hendershaw v. Estate of Hendershaw, 763 So. 2d 482, 483 (Fla. 4th DCA 2000) (“The probate court’s findings in a will contest shall not be overturned where there is substantial competent evidence to support those findings, unless the probate judge has misapprehended the evidence as a whole.”).

“When a will is challenged on the grounds of undue influence, the influence must amount to over persuasion, duress, force, coercion, or artful or fraudulent contrivances to such an extent that there is a destruction of free agency and willpower of the testator.” Levin v. Levin, 60 So. 3d 1116, 1118 (Fla. 4th DCA 2011) (quoting Raimi v. Furlong, 702 So. 2d 1273, 1287 (Fla. 3d DCA 1997)). The doctrine of undue influence is based on the theory that the “testator is induced by various means, to – 2 – execute an instrument which, although his, in outward form, is in reality not his will, but the will of another person which is substituted for that of testator.” In re Winslow’s Estate, 147 So. 2d 613, 617 (Fla. 2d DCA 1962) (citation omitted). “Undue influence is not usually exercised openly in the presence of others, so that it may be directly proved, hence it may be proved by indirect evidence of facts and circumstances from which it may be inferred.” Gardiner v. Goertner, 149 So. 186, 190 (Fla. 1932) (citation omitted).

The Florida Supreme Court has established a set of non-exhaustive factors for courts to consider on the issue of undue influence or active procurement:

  • (a) presence of the beneficiary at the execution of the will;
  • (b) presence of the beneficiary on those occasions when the testator expressed a desire to make a will;
  • (c) recommendation by the beneficiary of an attorney to draw the will;
  • (d) knowledge of the contents of the will by the beneficiary prior to execution;
  • (e) giving of instructions on preparation of the will by the beneficiary to the attorney drawing the will;
  • (f) securing of witnesses to the will by the beneficiary; and
  • (g) safekeeping of the will by the beneficiary subsequent to execution

Click here to read the rest of the judgment.

This case was also appealed. Click here to read that appeal.

Share this on...Share on FacebookTweet about this on TwitterShare on LinkedInShare on Google+Email this to someone

Written by Luis E. Barreto

Luis E. Barreto

Luis is a probate and guardianship litigator with over 23 years of experience in the field. Determination of heirs, will contests, breaches of fiduciary duty, removal of personal representatives, guardians and trustees are just some of the types of litigation he addresses. In addition, he administers non-contested estates and guardianships.