Florida Statutes

Fla. Stat. § 733.107 (2025)

Burden of proof in contests; presumption of undue influence.

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733.107 Burden of proof in contests; presumption of undue influence.—

(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.

History.—s. 1, ch. 74-106; s. 50, ch. 75-220; s. 83, ch. 2001-226; s. 5, ch. 2002-82; s. 13, ch. 2010-132; s. 3, ch. 2014-127.

Note.—Created from former s. 732.31.

Notes of Decisions

Cited in 32 cases (5 in the last 5 years), 1984–2024 · leading case: Hack v. Janes, 878 So. 2d 440 (Fla. 5th DCA 2004).

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Hack v. Janes, 878 So. 2d 440 (Fla. 5th DCA 2004). · cites it 9× “See § 733.107, Fla. Stat. (2002). A rebuttable presumption of undue influence arises when someone in a fiduciary or confidential relationship actively procures a devise or gift in his or her favor.”

Universal Ins. Co. of North Am. v. Warfel, 82 So. 3d 47 (Fla. 2012). · cites it 4× “, § 733.107(2), Fla. Stat. (2010) (“The presumption of undue influence implements public policy against abuse of fiduciary or confidential relationships and is therefore a presumption shifting the burden of proof under sections 90.”

Warfel v. Universal Ins. Co. of North Am., 36 So. 3d 136 (Fla. 2d DCA 2010). · cites it 6× “See § 733.107(2), Fla. Stat. (2002); Hack v. Janes, 878 So.”

Amendments to the Florida Prob. Rules, 848 So. 2d 1069 (Fla. 2003). · cites it 8× “§ 733.107, Fla. Stat. Burden of proof in contests; presumption of undue influence.”

Rocke v. Am. Rsch. Bureau, 184 So. 3d 1221 (Fla. 2d DCA 2016). · cites it 3× “5th DCA 2004) (“The 2002 amendment to section 733.107, adding subsection 2, was intended to incorporate sections 90.”

Langford v. McCormick, 552 So. 2d 964 (Fla. 1st DCA 1989). · cites it 3× “Here, appellant, as the party petitioning for revocation of probate based on a later-executed will, had the initial burden of proving that the September will, which revoked all prior wills, was executed with the requisite formalities and thus superseded the probated March will;…”

Est. of Brock, 692 So. 2d 907 (Fla. 1st DCA 1996). · cites it 2× “The burden of proof in will contests is set forth in section 733.107, Florida Statutes, which provides: 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.”

Rbc Ministries v. Tompkins, 974 So. 2d 569 (Fla. 2d DCA 2008). · cites it 2× “" § 733.107(2), Fla. Stat. (2005). Such a presumption "affecting the burden of proof"as distinct from a presumption affecting the burden of producing evidence "imposes upon the party against whom it operates the burden of proof concerning the nonexistence of the presumed fact.”

Florida Bar, 537 So. 2d 500 (Fla. 1988). · cites it 2× “Committee Notes This rule represents a rule implementation of the procedure found in F.S. 733.107. *524 The language of this rule is identical with the statute.”

Jordan v. Fehr, 902 So. 2d 198 (Fla. 1st DCA 2005). · cites it 2× “" § 733.107, Fla. Stat. (1999); see also In re Nuckols' Estate, 147 So.”

Newman v. Brecher, 887 So. 2d 384 (Fla. 4th DCA 2004). · cites it 2× “The parties agree that the burden of proof in suits alleging undue influence is codified in section 733.107, Florida Statutes (2003).”

Agee v. Brown, 73 So. 3d 882 (Fla. 4th DCA 2011). · cites it 2× “”); § 733.107(2), Fla. Stat. (2009) (“The presumption of undue influence implements public policy against abuse of fiduciary or confidential relationships and is therefore a presumption shifting the burden of proof.”

Show all 32 citing cases →

— 733.107(1) — 3 cases

Price v. Abate, 9 So. 3d 37 (Fla. 5th DCA 2009).

Alfredo Tendler v. Kenneth N. Johnson (Fla. 4th DCA 2021).

William Gundlach, III v. Jon Erik Gundlach (Fla. 4th DCA 2022).

— 733.107(2) — 9 cases

Universal Ins. Co. of North Am. v. Warfel, 82 So. 3d 47 (Fla. 2012). “, § 733.107(2), Fla. Stat. (2010) (“The presumption of undue influence implements public policy against abuse of fiduciary or confidential relationships and is therefore a presumption shifting the burden of proof under sections 90.”

Warfel v. Universal Ins. Co. of North Am., 36 So. 3d 136 (Fla. 2d DCA 2010). “See § 733.107(2), Fla. Stat. (2002); Hack v. Janes, 878 So.”

Rocke v. Am. Rsch. Bureau, 184 So. 3d 1221 (Fla. 2d DCA 2016). “5th DCA 2004) (“The 2002 amendment to section 733.107, adding subsection 2, was intended to incorporate sections 90.”

Rbc Ministries v. Tompkins, 974 So. 2d 569 (Fla. 2d DCA 2008). “" § 733.107(2), Fla. Stat. (2005). Such a presumption "affecting the burden of proof"as distinct from a presumption affecting the burden of producing evidence "imposes upon the party against whom it operates the burden of proof concerning the nonexistence of the presumed fact.”

Hack v. Janes, 878 So. 2d 440 (Fla. 5th DCA 2004). “See § 733.107, Fla. Stat. (2002). A rebuttable presumption of undue influence arises when someone in a fiduciary or confidential relationship actively procures a devise or gift in his or her favor.”

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