PROBATE CORNER

By: David M. Garten, Esq.

ARTICLE: Amendments to §§733.107 & 736.0207, F.S. (effective July 1, 2014)

  • 733.107, F.S.

A presumption of undue influence will arise with respect to a transaction if the contestant can show that a person in a confidential relationship was active in procuring a document under which the contestant is a substantial beneficiary. The presumption of undue influence in will contests is a policy-based presumption that shifts the burden of proof. Courts have recognized that the burden-shifting nature of the presumption of undue influence is applicable whenever that presumption is established. However, because the burden shifting presumption is located in the Florida Probate Code, it could be argued that it only applies in will contests and does not apply to other undue influence proceedings, including trust contests and challenges to the validity of inter vivos transactions. The amendment to §733.107 provides that a presumption of undue influence, once it arises, applies to all testamentary challenges including trust contests and challenges to inter vivos gifts. This amendment codifies what many practitioners express as the accepted current state of Florida case law. The changes made to §733.107 are intended to clarify existing law, are remedial in nature, and apply retroactively to all proceedings pending on or before the effective date of this act, i.e., July 1, 2014 and to all cases commenced on or after the effective date of this act. See, Laws of Florida Ch. 2014-127, Section 4. The amendment (in bold) to the statute reads:

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.

  • 736.0207, F.S.

The Florida Probate Code and the Florida Trust Code provide that all or any part of a will or trust is void if it is procured by fraud, duress, mistake, or undue influence. While both codes specify grounds for a will contest or trust contest, only the Probate Code contains a provision designating which party has the burden of proof. The new statute amends the Trust Code to be consistent with the Probate Code so that the contestant in a trust contest has the burden of proof on all issues, including proving that the trust was not properly executed. The amendment to §736.0207 provides that the contestant in a trust contest has the burden of proof on all issues, including proving that the trust was not properly executed. This amendment is remedial in nature and retroactive because it is intended to clarify existing law. The changes made to §736.0207 apply to all cases commenced on or after the effective date of this act, i.e., July 1, 2014. See, Laws of Florida Ch. 2014-127, Section 8. The amendment (in bold) to the statute reads:

736.0207 Trust contests.—

(1) In an action to contest the validity or revocation of all or part of a trust, the contestant has the burden of establishing the grounds for invalidity.

(2) An action to contest the validity of all or part of a revocable trust, or the revocation of part of a revocable trust, may not be commenced until the trust becomes irrevocable by its terms or by the settlor’s death. If all of a revocable trust has been revoked, an action to contest the revocation may not be commenced until after the settlor’s death. This section does not prohibit such action by the guardian of the property of an incapacitated settlor.