Why Do I Have to Sit in the Waiting Room?

March 14, 2018

Attorneys have a duty to do what is best for their client. Who is the client? The client is the person creating the legal documents and signing them. Not their children, not their siblings, and not their best friend. Even if they traveled to the attorney’s office together.

Most of the time, the client’s family or caregivers truly care about the client’s best interests, especially when dealing with elderly clients. They provide love, daily assistance, and support for the aging individual and should be trusted. But what about a scenario where someone tries to manipulate an elderly individual for material gain?

For example: someone who takes advantage of a vulnerable elderly or medically ill person. Stealing is one form of elder abuse. Another form is to exert what attorneys call “undue influence” on a susceptible individual, disrupting the person’s natural tendency to provide for their family members, and instead, pressuring them into leaving their assets to the manipulator. This mainly comes up when the elderly individual is creating certain legal documents such as a Last Will and Testament (“Will”), Trust, Power of Attorney, or Real Estate Deeds.

Testamentary Capacity

The “testator” or “testatrix” is the person creating and signing their Will. Testamentary capacity means the testator’s mental state at the time when he or she signed their Will. The legal standard for testamentary capacity is that the testator knew the nature and extent of his or her property, the natural objects of his or her bounty (property) and the contents of his or her estate plan. See, In re Estate of Tolin, 622 So.2d 988, 990 (Fla. 1993). If the Will is later “challenged” or disputed in Court, the testator’s mental capacity may support a claim under two different, yet related, causes of action, specifically that the testator was unduly influenced or lacked capacity.

Undue Influence

Undue influence is a cause of action used to challenge the validity of a testamentary document (Last Will and Testament or a Trust), deeds and other inter vivos – transfers. As the Second District Court of Appeal in Florida noted, the conduct of a person charged with “undue influence, as it is required for invalidation of a will, must amount to over-persuasion, force, duress, coercion, artful or fraudulent contrivances to such a degree that there is obliteration of the free agency and will power of the one making the Will.”

How is Undue Influence Proven?

Florida undue influence cases are proven through circumstantial evidence and involve a shifting burden of proof. The pivotal Florida Supreme Court case is In re: Estate of Carpenter, 253 So.2d 697 (Fla.1971). The Carpenter court held that a presumption of undue influence affecting the burden of proof arises when:

  • Someone had a substantial benefit under the Will,
  • Possessed a confidential relationship with the decedent, and
  • Was active in the procurement of the Will

The Carpenter court explained that the first and second elements of the presumption of undue influence are not difficult to prove, but that the active procurement element would be more difficult. Carpenter provided guidance by outlining seven factors to help discern whether there was active procurement. Three more factors were later added by Florida courts. The ten factors that Florida courts generally consider are:

  • Presence of the beneficiary during the signing of the Will;
  • Presence of the beneficiary on occasions when testator expressed a desire to make the Will;
  • Recommendation by the beneficiary of a lawyer to draft the Will;
  • Knowledge of the contents of the will by the beneficiary before the signing;
  • Providing instructions on preparation of the Will by the beneficiary to the lawyer drafting the Will;
  • Beneficiary securing witnesses to be present at the Will signing;
  • Safekeeping of the Will by the beneficiary after execution;
  • Isolating the testator and disparaging their family members;
  • Inequality of mental acuity between the decedent and the beneficiary;
  • Reasonableness of the Will or Trust provisions


In evaluating whether a Will truly represents the client’s intent, it is important to remember that mental or testamentary capacity are very pertinent to a possible undue influence claim later on. The standard for testamentary capacity is low and should be satisfied first at a minimum. Once that threshold is met and you are satisfied that the client has capacity, if you suspect undue influence, so will the party disadvantaged by the Will (any family members left out as beneficiaries). The drafter of the Will should be satisfied that the client is acting of her own free will and is not being unduly influenced. An effective method of exercising caution (if you are family of the testator), is to sit in the waiting room while the attorney talks to the client and during the Will signing. This will help differentiate truly helpful family members from those looking to benefit unduly from a someone’s passing. If you want to avoid possible future Will disputes, it is best to work with an attorney at OC Estate & Elder Law where we help our clients by implementing safeguards to help prevent possible undue influence. Contact us today at (954) 251-0332 or info@ocestatelawyers.com to learn more.