By: Kevin R. Albaum, Esq.
Clark, Campbell, Lancaster & Munson, P.A.
The term “Undue Influence” is a legal cause of action that can be brought in court when it is believed that a deceased person’s Last Will and Testament (trust, deed, beneficiary designation, etc.) was the product of another person’s over-persuasion, duress, force, coercion… to such a degree that the person who signed the document did not use their own free will power in executing the document. The person filing the lawsuit also needs to have been negatively impacted as a result of the alleged Undue Influence.
Undue Influence is often not discovered until after a person has died and (in the typical scenario) their Last Will and Testament is presented to the court for probate administration (the legal process of transferring assets from a person’s estate to the proper beneficiaries). When a person submits a Last Will and Testament to probate, the person who files the probate case is only required to serve notice of the proceedings to the following people: decedent’s surviving spouse, beneficiaries, persons who may be entitled to exempt property, and trustees of any revocable trust (if the decedent had a trust). Therefore, if a person who has exerted Undue Influence in the creation of the deceased person’s Last Will and Testament, those who were improperly disinherited may never even be notified by the wrongdoer.
If a person receives a “Notice of Administration” document in a probate proceeding, they only have three (3) months in which to bring a challenge before they are time barred. If a person does not receive the requisite Notice of Administration document, the general rule is that you would have up to four (4) years from date of death to bring a challenge before it becomes time barred. However, a recent case which is binding on the 2nd Circuit Courts of Florida found that the “Delayed Discovery Doctrine” applied to the specific facts of a certain case and therefore the person who was improperly disinherited was able to bring the legal cause of action after the four (4) years had expired. The Delayed Discovery Doctrine is merely an exception to the general four (4) year rule. It means that in specific circumstances, the statute of limitations will be extended by the court to give the plaintiff more time to file the lawsuit (up to a maximum of twelve (12) years) if the plaintiff didn’t know of (or reasonable should have known) of the circumstances that gave rise to their legal cause of action.
Determining whether Undue Influence has occurred is a question of fact for the judge or jury to decide. However, common factors the court will consider in making that determination are as follows:
- The presence of the beneficiary at the execution of the testamentary document;
- The safekeeping of the testamentary document by the beneficiary after execution;
- The procuring of witnesses to witness the execution of the testamentary document by the beneficiary;
- The beneficiary instructing the preparing of the testamentary document to the drafter;
- The beneficiary knowing the contents of the testamentary document prior to the document’s execution;
- The beneficiary recommending or selecting the attorney; and
- The beneficiary’s presence on occasions when the now deceased person had expressed a desire to make the testamentary document.
This list is not all inclusive but are some of the key factors to be considered in determining whether or not a document was the product of Undue Influence.
If you believe you may have a valid claim of Undue Influence, you should speak with a knowledgeable probate attorney to ensure you understand your legal rights and when the statute of limitations on your possible cause of action will expire.
Kevin Albaum is an attorney in the Elder Law Practice at Clark, Campbell, Lancaster & Munson, P.A. Questions can be submitted online to firstname.lastname@example.org.
Kevin moved to Lakeland, Florida to join Clark, Campbell, Lancaster, and Munson where he practices in the areas of: elder law, guardianship, estate planning, trust administration, and Medicaid. Since moving to Lakeland, he has become involved with the Alzheimer’s Association Walk Committee, EMERGE Lakeland, and VISTE.
Latest posts by Kevin Albaum (see all)
- Retroactive Medicaid in Florida Has Been Eliminated: Is This Good or Bad? - March 7, 2019
- The Basics of Medicaid Financial Eligibility for Nursing Home Residents - January 10, 2019
- Are Peanuts and Crackerjacks at the Ballpark Still Deductible for a Business? - October 18, 2018