Will

A will is a written document describing how a persons affairs shall be handled upon their death. It generally designates a Personal Representative and provides directions on how to divide the Estate of the Testator.

A will signed by a witness is an Attested Will.

A will handwritten by the Testator is a Holographic Will.

Undue Influence
It is established in Florida that if a substantial beneficiary under a will occupies a confidential relationship with the Testator and is active in procuring the contested will, the presumption of undue influence arises. Zinnser v. Gregory, 77 So.2d 611 (Fla. 1955); In Re Palmer's Estate, 48 So.2d 732 (Fla. 1950); In Re Knight's Estate, 108 So.2d 629 (Fla.App. 1st, 1959); and In Re Starr's Estate, 125 Fla. 536, 170 So. 620 (1935).

Ordinarily, the party wishing to challenge a facially valid will, has the burden of proof. Once the criteria for undue influence are established, however, the burden of proof shifts to the party seeking to uphold the terms of the will to prove out "a reasonable explanation for his or her active role in the decedent's affairs, and specifically, in the preparation of the will." In re Estate of Carpenter, 253 So. 2d 697 (Fla. 1971).

"Active procurement" and "confidential relationship" are legal concepts operating within a broad sphere of factual situations. Within this sphere, the trier of fact is vested with discretion to determine whether or not the facts show active procurement and/or a confidential relationship. Outside this sphere, the question becomes one to be decided by the trier of law in accord with established rules.

Confidential Relationship
"The term `fiduciary or confidential relation,' is a very broad one * * * The origin of the confidence is immaterial. The rule embraces both technical fiduciary relations and those informal relations which exist wherever one man trusts in and relies upon another. . . . The relation and the duties involved in it need not be legal. It may be moral, social, domestic, or merely personal. Quinn v. Phipps, 93 Fla. 805, 113 So. 419 (1927).

Active Procurement
Each case involving active procurement must be decided with reference to its particular facts. The Courts, however, have set out general criteria that should commonly be considered:

(a) presence of the beneficiary at the execution of the will; (b) presence of the beneficiary on those occasions when the testator expressed a desire to make a will; (c) recommendation by the beneficiary of an attorney to draw the will; (d) knowledge of the contents of the will by the beneficiary prior to execution; (e) giving of instructions on preparation of the will by the beneficiary to the attorney drawing the will; (f) securing of witnesses to the will by the beneficiary; and (g) safekeeping of the will by the beneficiary subsequent to execution.

See In Re Smith's Estate, 212 So.2d 74 (Fla.App.4th 1968).