Statistically, undue influence is the most frequent legal basis for invalidating a will in Florida.1 Because an undue influencer usually exercises influence over the decedent behind closed doors, opponents of a will generally have little, if any, direct evidence available to establish that a will was procured by undue influence.
Realizing this, in 2002, the Florida legislature enacted Fla. Stat. Section 733.107(2), providing that if a contestant establishes a presumption of undue influence, the burden of proof shifts from the will contestant to the will proponent, requiring the proponent to establish that the will wasn’t procured by undue influence. An important exception to this burden-shifting rule is that the evidentiary presumption of undue influence generally can’t arise when the alleged influencer is the decedent’s spouse, making it extremely difficult to establish spousal undue influence. For this reason, the recent Florida opinion in Blinn v. Carlman is rare.2
Stepmommy Dearest
In 2007, Richard Blinn, the owner of a yacht brokerage business, married his fourth wife, Demetra, at the ripe old age of 81. Demetra wasn’t dissuaded from marrying Richard, despite the fact that he’d been suffering from progressive dementia since 2006.
After less than a year of marriage, Richard executed a new will (the 2008 Will), leaving his estate outright to Demetra, if she survived him or, if she predeceased him, to charity. Demetra attempted to probate the 2008 Will shortly after Richard’s death; however, Richard’s children, Patty and Brian, filed an action seeking to invalidate the 2008 Will based on undue influence. The trial court found that the 2008 Will was procured by undue influence on the part of Demetra, and Demetra appealed.
Evidence of Undue Influence
Florida’s Fourth District Court of Appeal (the Fourth DCA) affirmed, finding that substantial competent evidence existed to support the trial court’s ruling that the 2008 Will was procured as a result of spousal undue influence, including:
Richard’s declining health. The Fourth DCA first explored the facts establishing that Richard was highly susceptible to undue influence due to his declining physical and mental state. The court found that from 2006 forward, Richard’s progressive dementia worsened, which led him to begin engaging in inappropriate behaviors and outwardly expressing his paranoid beliefs. In addition, due to his declining health, Richard began making imprudent financial decisions, which negatively affected his business. For example, Richard began regularly playing mail-away scam lotteries in foreign countries, and, despite never receiving any money, he was adamant that he was consistently winning significant sums. Richard’s mental state around the time of the execution of the 2008 Will was an important factor because, in Florida, if a decedent is weak and his intellect is clouded, the amount of undue influence needn’t be “great” to revoke a will.3
Execution of the 2008 Will. Next, the Fourth DCA considered the circumstances surrounding the execution of the 2008 Will, which it deemed “most suspicious.”4 While two lawyers were involved in the process of procuring the 2008 Will, a referring lawyer and a drafting lawyer, neither took any responsibility for its preparation or content.
At trial, the referring lawyer testified that he merely put the decedent in touch with the drafting lawyer, his former law partner, but never discussed the content of the 2008 Will with Richard, Demetra or the drafting lawyer. In sharp contrast, the drafting lawyer testified that he received instructions regarding the dispositive provisions of the 2008 Will from the referring lawyer and that he never spoke with Richard and Demetra until Richard came in to sign the 2008 Will. After considering the testimony of both lawyers, the Fourth DCA commented that if their testimony was accurate, the 2008 Will “drafted itself and miraculously appeared at the drafting lawyer’s office.”5
2006 Will deviates from 2008 Will.
Another factor establishing the 2008 Will was procured by undue influence was that the provisions in the 2008 Will differed drastically from the terms of the decedent’s prior two wills. The year prior to his marriage, Richard, who had already known Demetra for eight months, executed a will leaving everything outright to his daughter, Patty, if she survived him, or, if she predeceased him, to his granddaughter (the 2006 Will). The terms of the 2006 Will were consistent with Richard’s previous will.
Abusive relationship. Finally, the Fourth DCA discussed the testimony presented at trial establishing how Demetra systematically isolated Richard from his children. For example, Demetra would hang up on Richard’s son, Brian, whenever he called Richard.
While this sort of indirect evidence is common in undue influence cases, the Fourth DCA was able to consider direct evidence that offered significant insight into Richard’s and Demetra’s marriage. In a voicemail that Demetra inadvertently left on an employee’s phone, Demetra was caught berating Richard about how his daughter, Patty, was stealing from him and running the company behind his back. The Fourth DCA found that Demetra clearly unduly influenced Richard because she pushed the idea that Patty was stealing from him without any proof. The Fourth DCA found that it is rare in an undue influence case “to have such a glimpse into an abusive marital relationship.”6
Two Takeaways
Based on the reasons discussed above, the Fourth DCA found that substantial evidence existed to support the trial court’s finding that the 2008 Will was procured as a result of undue influence. A major takeaway for litigators is that spousal undue influence can be established even though the presumption of undue influence can’t arise. On the other side of the spectrum, a major takeaway for planners is that even when they jointly represent a couple, they should be cognizant of actual or potential spousal undue influence and govern themselves accordingly.
Endnotes
1. Rohan Kelley, Probate Litigation, Practice Under the Florida Probate Code, PPC FL-CLE 21-1 (2014).
2. Blinn v. Carlman, 159 So. 3d 390 (Fla. 4th DCA 2015).
3. Ibid., at 392 (citing In re Perez Estate, 206 So. 2d 58, 59 (Fla. 3d DCA 1968)).
4. Ibid.
5. Ibid.
6. Ibid., at 393.
