There is a presumption of undue influence when the undue influencer: (1) occupies a confidential relationship with the decedent; (2) is a substantial beneficiary under the will; and (3) was active in procuring the will.
To determine who is a substantial beneficiary under a will, you need to do more than just compare the size of the bequest to the total value of the estate; you should also consider the discretionary powers given to the personal representative, prior bequests, and the amount given to each of the beneficiaries.
As a general rule, an attorney who is not a beneficiary, but is named as a personal representative in a will drafted by him for his client is not a substantial beneficiary under the will. See Zinnser v. Gregory, 77 So. 2d 611 (Fla. 1955); Rand v. Giller, 489 So. 2d 796 (Fla. 3rd DCA 1986). However, if the attorney/PR has absolute discretion to distribute the bulk of decedent’s estate, he is endowed with sufficient collateral benefits to make him a “substantial beneficiary” under the will. See Allen v. Estate of Dutton, 394 So. 2d 132 (Fla. 5th DCA 1980); In re Estate of LeVin, 419 Pa. Super. 89; 615 A.2d 38 (Pa. Super. 1992).
A beneficiary is not considered a “substantial” beneficiary: (a) if he is receiving the same or less than he would have received under the prior non-contested will(s) [See Carter v. Carter, 526 So. 2d 141(Fla. 3rd DCA 1988)]; or (b) if he is receiving the same amount as the other beneficiaries named in the contested will [See In re Estate of Yelvington, 280 So. 2d 497 (Fla. 1st DCA 1973)]. The rationale being that the influence must have resulted in an added benefit to the beneficiary. See Murrey v. Barnett National Bank of Jacksonville, 74 So. 2d 647 (Fla. 1954).