John J. Pankauski is a partner with Pankauski Hauser PLLC in West Palm Beach, Florida. Mr. Pankauski has spent over 20 years of his career handling matters involving wills, trusts, estates, probates, and guardianships. His practice is limited to disputes, trials and appeals of such matters. He is AV Preeminent rated by Martindale Hubel.

1. UNDUE INFLUENCE
WITH JOHN PANKAUSKI, ESQ.
(561) 514 – 0900
www.phflorida.com

2. DISCUSSION TOPICS
Probate Litigation 101: What does undue
influence have to do with setting aside a will
or trust?
How do courts look at undue influence?
What is undue influence?
How do you prove undue influence?
What is Florida’s public policy regarding
undue influence?

3. $56 TRILLION

4. PROBATE LITIGATION 101: WHAT
DOES UNDUE INFLUENCE HAVE
TO DO WITH SETTING ASIDE A
WILL OR TRUST?

9. The Starting Blocks: Why Do We
Care? Fla. Stat. 732.5165 “A will is
void if the execution is procured
fraud, duress, mistake or undue
influence.”

11. HOW DO COURTS LOOK AT
UNDUE INFLUENCE?

15. WHAT IS UNDUE INFLUENCE?

16. …“testator is induced by various means, to
execute an instrument which, although his, in
outward form, is in reality not his will, but the will
of another person which is substituted for that of
testator.”In re Winslow’s Estate, 147 So. 2d 613,617 ( Fla. 2d DCA 1962).

17. #1- FORCE

18. Undue Influence Defined – See Henry v. Jones, ____ So.3d ____
(Fla., 2nd DCA, October 14, 2016) 2016 WL 6036691: "Undue
influence must amount to 'over persuasion, duress, force,
or artful or fraudulent contrivances to such an extent that there is
destruction of free agency and willpower of the testator.' "Estate of
Kester v. Rocco, 117 So. 3d 1196, 1199 (Fla. 1st DCA 2013) (quoting
Raimi v.Furlong, 702 So. 2d 1273, 1287 (Fla. 3d DCA 1997)); see
Blinn v. Carlman, 159 So.3d 390 (Fla. 4th DCA, 2015), citing Levin v.
Levin, 60 So. 3d 1116, 1118 (Fla. 4th DCA, 2011).

20. #2-OVER
PERSUASION

21. Did someone influence mom or
dad to make them a
beneficiary?

22. #3- COERCION

23. “1) In all proceedings contesting the validity of a will, the burden
shall be upon the proponent of the will to establish prima facie its
formal execution and attestation. A self-proving affidavit executed
in accordance with s. 732.503 or an oath of an attesting witness
executed as required in s. 733.201(2) is admissible and establishes
prima facie the formal execution and attestation of the will.
Thereafter, the contestant shall have the burden of establishing the
grounds on which the probate of the will is opposed or revocation
is sought.
(2) In any transaction or event to which the presumption of undue
influence applies, the presumption implements public policy
against abuse of fiduciary or confidential relationships and is
therefore a presumption shifting the burden of proof under ss.
90.301-90.304. “
Burden of proof in contests;
presumption of
undue influence
LORIDA STATUTE 733.107

24. Van Meter v. Bank of
Clearwater
FLORIDA UNDUE
INFLUENCE CASE!!!

26. Undue influence is a species of
fraud – Van Meter v. Bank of
Clearwater, 276 So. 2d 241 (Fla.,
DCA, 1973).

27. Undue influence, like fraud, must be
pled with particularity-- Fla. Rule Civ.
Proc. 1.120(b), – Van Meter v. Bank of
Clearwater, 276 So. 2d 241 (Fla., 2nd
DCA, 1973).

28. Doctrine of Undue Influence – based on the
that the person signed the will because he or she
was induced by various means, which, although the
will is “his” or “hers”, in “outward” form, the will, in
reality, is not his or her will, but rather the will of
another person—the “undue influencer.” Blinn v.
Carlman, 159 So.3d 390, 391 (Fla. 4th DCA, 2015).

29. HOW DO YOU PROVE
UNDUE INFLUENCE?

31. #1-I DIDN’T SEE IT…

32. #2-I WAS LIVING
3000 MILES AWAY…

33. #3-
CIRCUMSTANTIAL
EVIDENCE !

34. #4-MEDICAL
RECORDS…

35. #5- FRIENDS &
NEIGHBORS

36. #6-HEALTH CARE WORKERS,
AIDS, ASSISTANTS

37. WHAT IS FLORIDA’S PUBLIC
POLICY REGARDING
UNDUE INFLUENCE?

43. IN CONCLUSION, REMEMBER THAT IT IS
IMPORTANT TO CONSIDER THE FOLLOWING :
Probate Litigation 101:What does undue
influence have to do with setting aside a will
or trust?
How do courts look at undue influence?
What is undue influence?
How do you prove undue influence?
What is Florida’s public policy regarding
undue influence?

44. John Pankauski, Esq.
Phone:
(561)514-0900 Ext.105
Email: john@phflorida.com
Robert Hauser, Esq.
Phone:
(561)514-0900 Ext.102
Email:
hauser@phflorida.com