Posted By Larry on January 13, 2010
In South Florida, especially, the law is particularly sensitive to the many distinct abuses that may be perpetrated against the elderly, including physical mistreatment, neglect and undue influence.
To be sure, undue influence is much harder to spot than physical mistreatment and neglect, and is even harder to prove in a court of law. The most common form of exertion of undue influence over elderly persons is perpetrated within the realm of probate law, and was recognized by the Supreme Court of Florida in the seminal case, In Re Estate of Carpenter (1971). The Testator in Carpenter prepared and executed her Last Will and Testament four days before her death, in which she left her entire estate to her daughter and nothing to her three surviving sons, who challenged the Will on the ground that it had been procured by their sister by undue influence. In its Opinion, the Supreme Court pointed to seven factors, the existence of which create a presumption of undue influence:
- The presence of the beneficiary when the Will is signed;
- The presence of the beneficiary when the Testator expresses a desire to make a Will;
- The beneficiary recommends an attorney to draft the Will;
- The beneficiary has knowledge of the Will’s contents before the Testator signs it;
- The beneficiary gives instructions to the attorney drafting the Will;
- The beneficiary obtains witnesses to sign the Will;
- The beneficiary has possession of the Will for safekeeping after it is signed.
But undue influence can be exerted outside of probate law as well. Oftentimes, elderly persons are coaxed into writing large checks or gifting valuables to family members, friends, caretakers or even strangers, or are encouraged to engage in business transactions without fully comprehending their implications. This may be undue influence, even if a court has not rendered the elderly person legally incompetent. If you suspect that your loved one is (or was) a victim of undue influence, you should immediately contact an experienced Florida elder law attorney to discuss your options.
If you would like more information about this topic, you may either post a comment to this blog, contact me, Larry Tolchinsky, by email, or call me at (954) 458-8655 and I will be happy to answer your questions. I offer a free initial consultation.