Under Fla. Stat. § 732.5165, any part of a will procured by undue influence is void. Proving undue influence in Florida rarely depends on a confession or an eyewitness, because the pressure that produces a changed will happens in private, often while the testator is ill or dependent. The law answers that problem with a presumption, and whether the presumption arises usually decides who wins the case.

This article explains how the presumption arises, what it requires of the person defending the will, and what evidence carries a Florida undue influence claim. For the full set of grounds and deadlines, see our guide to contesting a will in Florida.

Southron Firm, P.A. is a Tampa, Florida litigation firm that represents heirs, beneficiaries, and personal representatives in contested probate proceedings.

What Proving Undue Influence in Florida Requires

Proving undue influence in Florida requires showing pressure that overcame the testator’s free will, so that the will reflects what another person wanted. Persuasion, affection, and ordinary family requests do not qualify.

Undue Influence: Influence over a testator that destroys free agency and causes the testator to sign a will, or a provision of a will, that he or she would not otherwise have made.

The remedy under § 732.5165 is targeted. A court voids the procured part of the will and enforces the remainder if it is otherwise valid. If undue influence procured the revocation of an earlier will, that revocation is void as well.

The Presumption of Undue Influence in Florida

The presumption of undue influence in Florida arises when a substantial beneficiary under the will occupied a confidential relationship with the testator and was active in procuring the will. The Florida Supreme Court set out this test in In re Estate of Carpenter, 253 So. 2d 697 (Fla. 1971), and Florida courts still apply it.

Confidential Relationship: A relationship in which the testator placed trust and confidence in another person who, as a result, held a position of influence over the testator’s affairs.

Each element must be proven. A caregiver who manages a parent’s bank accounts but receives nothing under the will does not trigger the presumption. Neither does a child who receives a large share but had no role in arranging the will.

Active Procurement Factors in Florida

Carpenter identified the circumstances courts weigh when deciding whether a beneficiary was active in procuring a will. The list is not exhaustive, and no single factor is required.

• The beneficiary was present when the testator first said he or she wanted a new will.
• The beneficiary was present when the will was signed.
• The beneficiary recommended or selected the attorney who drafted the will.
• The beneficiary knew what the will said before it was signed.
• The beneficiary gave the drafting attorney instructions about the will’s terms.
• The beneficiary found and arranged the witnesses.
• The beneficiary kept the will after it was signed.

Courts also consider the testator’s age and health, whether the testator was isolated from family, and whether the new will departs sharply from earlier estate plans. If you recognize several of these facts in your family’s situation, a Florida probate litigation attorney can assess whether they support the presumption.

How the Burden Shifts When Proving Undue Influence in Florida

Once the contestant proves both elements, the burden of proof shifts to the proponent of the will to prove that undue influence did not occur. Fla. Stat. § 733.107(2) declares that the presumption implements public policy against abuse of fiduciary or confidential relationships and shifts the burden of proof under the Florida Evidence Code, ss. 90.301 through 90.304.

That statutory language changed the rule Carpenter applied. Under Carpenter, the presumption only required the proponent to come forward with a reasonable explanation, after which the contestant again carried the full burden. The Legislature amended § 733.107 in 2002 to make the presumption shift the burden of proof itself, and the statute still reads that way in 2026.

Stage of the Case	Who Carries the Burden	What Must Be Shown
Admission of the will	Proponent	Formal execution and attestation, usually established by an affidavit that makes the will self-proved or by a witness oath under § 733.107(1)
Contest without the presumption	Contestant	Undue influence itself, proven by direct or circumstantial evidence
Contest with the presumption	Contestant first, then proponent	Contestant proves a confidential relationship, substantial benefit, and active procurement; the proponent must then prove the will was not the product of undue influence

The practical effect is significant. When proving undue influence in Florida with the presumption in place, the beneficiary who arranged the will must explain it with evidence, and provisions the proponent cannot explain fail.

Evidence That Supports an Undue Influence Will Contest in Florida

An undue influence will contest in Florida is built from records created while the testator was alive. Dated records such as medical charts, bank statements, and the drafting attorney’s file usually outweigh family recollections.

1. Collect prior wills and trusts. A long pattern of equal treatment among children, broken by a late change favoring one person, is evidence of an unnatural disposition.
2. Obtain medical records for the months around execution. Cognitive decline, medication, and hospitalization bear on susceptibility to influence.
3. Trace financial control. Power of attorney documents, joint accounts, and transfers to the beneficiary show who held authority over the testator’s affairs. An agent acting under a power of attorney is a fiduciary under Fla. Stat. § 709.2114(1).
4. Subpoena the drafting attorney’s file. Intake notes, emails, and billing entries often show who called the lawyer, who attended meetings, and who delivered instructions. Under Fla. Stat. § 90.502(4)(b), the lawyer client privilege does not protect communications relevant to an issue between parties who claim through the same deceased client.
5. Depose the witnesses and the notary. They can say who was in the room and who arranged the signing.
6. Document isolation. Changed phone numbers, blocked visits, and intercepted mail show a beneficiary controlling access to the testator.

Substantial Beneficiary: A person who receives a meaningful benefit under the challenged will, typically more than he or she would have received under a prior will or under Florida’s intestacy statutes.

Deadlines and Risks in a Florida Undue Influence Claim

An interested person served with a notice of administration has 3 months from service to object to the validity of the will, or the objection is forever barred under Fla. Stat. § 733.212(3). Proving undue influence in Florida within that window takes most of the 3 months, so the clock matters from the first day.

• Waiting until death to gather evidence. Fla. Stat. § 732.518 bars any will contest before the testator dies. Families who suspect influence while a parent is alive should preserve emails, texts, and financial statements now.
• Ignoring formal notice before letters issue. Under Fla. Stat. § 733.2123, a person served with formal notice of the petition for administration may challenge the will only in the proceedings before letters issue.
• Relying on suspicion alone. Under Fla. Stat. § 733.106(4), the court may assess attorney fees against a person’s share of the estate after weighing the strength of that person’s claims, without any finding of bad faith.
• Challenging only the will. If the same beneficiary procured changes to a revocable trust, those changes require a separate challenge under Fla. Stat. § 736.0207.

While a revocation proceeding is pending, Fla. Stat. § 733.109(2) prohibits distributions to beneficiaries that would defeat the rights of those who would take if the will failed. Contact a Florida attorney before the 3 month deadline passes if any of these risks apply to you.

When to Speak With a Florida Probate Litigation Attorney

Speak with an attorney as soon as a notice of administration arrives or a will surfaces that departs sharply from what the testator said for years. The 3 month objection period under § 733.212 leaves little time for proving undue influence in Florida through subpoenaed records and depositions.

• A caregiver, new spouse, or one child received most of the estate under a will signed late in life.
• The beneficiary held a power of attorney or controlled the testator’s accounts.
• The beneficiary chose the lawyer, attended meetings, or kept the original will.
• Family members were cut off from the testator in the months before signing.
• You are the personal representative or a beneficiary defending a will against an undue influence claim.

Disputes that involve a fiduciary’s misuse of authority often overlap with breach of fiduciary duty claims in Florida, and a Tampa probate litigator can evaluate both. Planning documents drafted with these risks in mind are discussed on our Tampa trusts and wills page.

Frequently Asked Questions

Q: What do you need for proving undue influence in Florida? A: You need evidence that a substantial beneficiary had a confidential relationship with the testator and was active in procuring the will. Those facts raise a presumption under Florida law that shifts the burden to the will’s proponent. Without the presumption, the contestant must prove undue influence directly, usually through circumstantial evidence.

Q: What is the presumption of undue influence in Florida? A: It is a presumption that a will was procured by undue influence, arising when a substantial beneficiary in a confidential relationship with the testator actively procured the will. Under Fla. Stat. § 733.107(2), the presumption shifts the burden of proof to the proponent, who must then prove the will was not the product of undue influence.

Q: Who has the burden of proof in an undue influence will contest in Florida? A: The contestant carries the burden at the start. If the contestant establishes the presumption, the burden shifts to the person defending the will under § 733.107(2). The proponent always bears the initial burden of proving that the will was properly executed.

Q: What counts as active procurement of a will in Florida? A: Florida courts look at whether the beneficiary was present when the testator discussed or signed the will, chose the drafting attorney, gave the attorney instructions, knew the will’s contents in advance, arranged the witnesses, or kept the will afterward. No single factor is required, and courts weigh them together.

Q: Does undue influence void the entire will in Florida? A: Not necessarily. Under Fla. Stat. § 732.5165, only the part of the will procured by undue influence is void, and the rest remains valid if it is not invalid for other reasons. A revocation of an earlier will procured by undue influence is also void.

Q: How long do you have to bring an undue influence claim in Florida? A: An interested person served with a notice of administration must object within 3 months of service under Fla. Stat. § 733.212(3). Regardless of service, all objections must be filed by the earlier of the personal representative’s final discharge or 1 year after service of the notice.

Q: Can I contest a will for undue influence while my parent is still alive? A: No. Fla. Stat. § 732.518 prohibits any action to contest a will before the testator’s death. You can preserve evidence now, including messages, bank statements, and the names of people involved in drafting the will.

Key Takeaways

• Any part of a Florida will procured by undue influence is void under Fla. Stat. § 732.5165, and the rest of the will can survive.
• Proving undue influence in Florida usually turns on the presumption: a confidential relationship, a substantial benefit, and active procurement.
• Once the presumption arises, Fla. Stat. § 733.107(2) shifts the burden of proof to the proponent of the will.
• The drafting attorney’s file is often the most important evidence, and the privilege does not shield it in disputes among those claiming through the deceased client.
• Objections to a will are barred 3 months after service of the notice of administration.
• Weak claims carry risk, because the court may assess attorney fees against a party’s share of the estate.

Legal Disclaimer This article is provided for informational purposes only and does not constitute legal advice. The information contained herein is based on Florida law as of the publication date and may not reflect recent changes. Laws vary by jurisdiction and circumstance, and no single article can address every situation. Do not rely on this article as a substitute for professional legal counsel. If you face a legal matter related to the topics discussed, contact an attorney licensed in Florida to review your specific facts and circumstances. Southron Firm, P.A., is a Florida law firm based in Tampa. For a consultation regarding your litigation or estate planning matter, contact our office.