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. See In re Estate of Carpenter, 253 So. 2d 697 (Fla. 1971). Based on the following line of cases, the “Dutiful Child” defense is one more issue to consider when litigating undue influence.
In Carter v. Carter, 526 So. 2d 141 (Fla. 3rd DCA 1988), the decedent left her estate in equal shares to her three sons. The mother’s codicil eliminated the one-third share to her son Carl which was divided equally between Carl, his ex-wife, and their four children. After their father’s death, James, who was named personal representative of his father’s estate, came to Miami from his home in Jacksonville to handle the probate of his estate. By that time, James had assumed management of the family business affairs due to his parents’ advancing years. They both had come to look to him for assistance. Not surprisingly, he asked his mother her wishes in regard to any changes she wanted made in her will. By then, eight years had passed and the trauma and disappointment caused by the divorce had had time to subside. He told her that shortly before his death, his father had indicated a compelling need to change his will back to its original form but that because he died suddenly, had not been able. James testified that he discussed the subject with his mother because he felt it was unfinished business which his father would have wanted him to take care of. His mother then told him to change her will accordingly. Upon returning to Jacksonville, James had his attorney draw the will up following his mother’s directions. He then returned it to her in Miami where they went over it. He left it at her house for her to consider further. Carl, who lived in Dade County, some days later took his mother to the office of an attorney near her home where she signed the will in the presence of disinterested witnesses. The new will returned to the scheme of the original will. After their mother’s death, Carl’s ex-wife and one of his children petitioned for revocation of the new will based upon undue influence allegedly exercised by Carl and James. The appellate court, in reversing the trial court’s finding of undue influence, reasoned in part that “[w]hen viewed in this context it was quite natural, and certainly not intrusive, for James to discuss with his mother any changes she might desire in her will. If an adult child, in James’s position, cannot talk to his parent about this, then we have finally demolished the family ties of love and natural affection.” “Once the familial situation has been brought into proper focus, it is clear that the actions of James and Carl in executing the will were “perfunctory physical activities” rather than active procurement. [citations omitted] Theirs were the acts of dutiful sons who helped their mother draw up her will and execute it. She was aging and needed helpful information and even advice. Her sons were shown to maintain constant contact with their mother. James handled her financial affairs; Carl made repairs around her home. Both saw that her physical needs were met.”
In Estate of Kester v. Rocco, 117 So. 3d 1196 (Fla. 1st DCA 2013), the decedent was survived by her three daughters. One daughter, Glenna, was personal representative. Glenna’s sisters accused her of exercising undue influence over their mother and improperly taking possession of her three bank accounts. The appellate court, in reversing the trial court’s finding of undue influence, reasoned in part that the “evidence that Glenna had a close relationship with her mother was insufficient to infer any undue influence. The testimony established that the other heirs also had close relationships with Mrs. Kester and assisted her with various tasks and transportation whenever needed. Evidence merely that a parent and an adult child had a close relationship and that the younger person often assisted the parent with tasks is not enough to show undue influence. Estate of Brock, 692 So. 2d at 911. Where communications and assistance are consistent with a “dutiful” adult child towards an aging parent, there is no presumption of undue influence. Carter v. Carter, 526 So. 2d 141, 142-43 (Fla. 3d DCA 1988). Ultimately, “[i]f an adult child . . . cannot talk to his parent . . . then we have finally demolished the family ties of love and natural affection.” “Likewise, the evidence of Glenna’s active procurement of Mrs. Kester’s designations of ownership and beneficiaries on the accounts was insufficient to establish the second indicator of undue influence. The testimony was unrefuted that Glenna was not present on any occasion when Mrs. Kester created or changed the financial account ownership or beneficiary list. There was no evidence that Glenna gave her mother instructions regarding any account changes, that Glenna alerted any bank employees prior to her mother’s transactions, or otherwise actively participated in the account designations. In fact, the dates Mrs. Kester named Glenna as a joint account holder or POD beneficiary are not clear from the record and the signature cards and POD designation(s) are not in the record. Mrs. Kester’s statement to a bank employee to the effect that Glenna would “take care of everything” did not establish any conditions on Mrs. Kester’s designations or show that Mrs. Kester did not intend her actions on the accounts as written.”
In Jacobs v. Vaillancourt, 634 So. 2d 667 (Fla. 2d DCA 1994), Mr. and Mrs. Jacobs were married in 1951. At the time of their marriage, Mrs. Jacobs had a daughter from a previous marriage. Her daughter was married to their estate planning attorney, Mr. Vaillancourt. Mrs. Jacobs died 26 days after they executed their trust. Three days later, Mr. Jacobs sued to vacate their trust. The trial court denied Mr. Jacobs’ request. On appeal, Mr. Jacobs contended, in part, that the trust is voidable because of undue influence by the Vaillancourts and his deceased spouse. In affirming the trial court’s judgment, the appellate court reasoned in part that “Mr. Vaillancourt responded to a request for help, performed the duties requested of him, and although his actions, because he is an attorney, established a fiduciary relationship, they did not amount to active procurement….” “Mr. Jacobs accordingly did not establish a right to relief in this case. We agree with our sister court who said in effect in Carter that it is quite natural, and certainly not intrusive, for members of a family, including a son-in-law to discuss with his mother-in-law any changes she might desire in her will. If members of a family cannot discuss these matters without it being considered improper active procurement, we have finally demolished the family ties of love and natural affection.”
In Kennedy v. Kennedy, 2022 Fla. App. LEXIS 5399; 47 Fla. L. Weekly D 1684; 2022 WL 3205524 (Fla. 5th DCA 8/9/22), the appellate court Per Curiam Affirmed the trial court’s judgment, citing Estate of Kester v. Rocco, 117 So. 3d 1196, 1200 (Fla. 1st DCA 2013) (“Where communications and assistance are consistent with a ‘dutiful’ adult child towards an aging parent, there is no presumption of undue influence.”). The Mandate filed on 08/29/2022.