Florida/Georgia Personal Injury & Workers Compensation

...This holding is supported by the notion that expressions of clear social policy are explicitly stated. Specifically, when the Legislature intends that section 90.304 apply to a statutory presumption, it knows how to articulate that intent. See e.g., § 733.107(2), Fla....

...Generally, when Florida courts have held that the Legislature “intended” to incorporate section 90.304 into a statutory presumption, the statute in question explicitly provides for such an application. See Hack v. Janes, 878 So.2d 440, 448 (Fla. 5th DCA 2004) (citing § 733.107(2), Fla....

...That review is within the exclusive jurisdiction of the supreme court. The second question presented in this appeal is whether the trial court correctly applied the law of undue influence and the proper burden of proof to the facts of this case. 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....

...urden of proving that the September will, which revoked all prior wills, was executed with the requisite formalities and thus superseded the probated March will; that done, the burden shifted to appellee to prove that the September will was invalid. § 733.107, Fla. Stat. (1987). See also Rule Fla.R.P. & G.P. 5.275 (implementing section 733.107 but adopted after this case was tried)....

...relationship." [2] In this appeal, Appellants contend that the trial court's conclusions are not supported by competent, substantial evidence, and that the trial court failed to properly apply the revised presumption of the undue influence statute, section 733.107, Florida Statutes (2002), enacted subsequent to our opinion in Hack I. We disagree and affirm. Nonetheless, the effect of the revisions to section 733.107 merit discussion. In will contests, the person opposing or seeking to revoke a will has the burden of producing evidence to support that position. See § 733.107, Fla....

...Ehrhardt, Florida Evidence, § 304.1 (2004 ed.) However, "when proof is introduced of the basic facts giving rise to a section 90.302(2) presumption affecting the burden of proof, the presumption operates to shift the burden of persuasion regarding the presumed fact to the opposing party." [3] Id. *443 Section 733.107, Florida Statutes (2002), provides: (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....

...(2) 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 90.301-90.304. (emphasis added). The 2002 amendment to section 733.107, adding subsection 2, was intended to incorporate sections 90.301-90.304 of the Florida Evidence Code, and require a shifting of the burden of proof after the presumption of undue influence arises in a will contest....

...Atlantic First National Bank, 422 So.2d 820 (Fla.1982), to the extent that they prohibit a shifting of the burden of proof in presumption of undue influence in cases. See Steven G. Nilsson, Florida's New Statutory Presumption of Undue Influence, 77 Fla. B.J. 20, 21 (2003). Because section 733.107(2) specifically mandates that the presumption shifts the burden of proof under sections 90.301 through 90.304 when a presumption of undue influence arises, as it did here, Janes, the alleged wrongdoer, bore the burden of proving that there was no undue influence....

...Indeed, "it will be the rare case in which all the criteria will be present." Id. *572 The rebuttable "presumption of undue influence implements public policy against abuse of fiduciary or confidential relationships and is therefore a presumption shifting the burden of proof." § 733.107(2), Fla....

...slature. The current statutory framework, contrary to Brown’s implication, does contain some protections. See, e.g., § 732.5165, Fla. Stat. (2009) (“A will is void if the execution is procured by fraud, duress, mistake, or undue influence.”); § 733.107(2), Fla....

...Finally, once all these presumptions and burdens are met, the decision rests on the traditional evidentiary test of who has proven their case by a preponderance of the evidence. Subsequent to Carpenter, however, the legislature enacted an amendment to § 733.107, Fla....

...The essential facts relating to the execution of the will are not in dispute. The will was not self-proved under section 732.503. Thus, Jordan had the burden "as the proponent of the will to establish prima facie its formal execution and attestation." § 733.107, Fla....

...s emotions. She may *386 have been suffering from some anxiety and could have had symptoms of early stages of dementia in 1991. Devchacko had never met Rose. The parties agree that the burden of proof in suits alleging undue influence is codified in section 733.107, Florida Statutes (2003)....

...The rule of law in this state is that, once the party offering a will for probate has proved the formal execution and attestation of the will, the burden of proof shifts to the person challenging the will to prove facts sufficient to justify revocation of probate. See § 733.107, Fla....

...Effect of subsequent marriage, birth, adoption, or dissolution of marriage. §§ 732.6005-732.611, Fla. Stat. Rules of construction. § 732.615, Fla. Stat. Reformation to correct mistakes. § 732.616, Fla. Stat. Modification to achieve testator's tax objectives. § 733.105, Fla. Stat. Determination of beneficiaries. § 733.107, Fla....

...I find it an anathema for a beneficiary to be present during execution of a will or when an attorney is discussing a prospective will with a testator client. NOTES [1] In re Estate of Davis, 428 So.2d 774 (Fla. 4th DCA 1983), as clarified at 438 So.2d 543 (Fla. 4th DCA 1983) [2] See the underlying statutory basis; namely, section 733.107, Florida Statutes (1975), which provides: Burden of proof in contests....

...ndment governing burdens of proof in will contests. There, the legislature announced that a presumption of undue influence implements public policy and shifts the burden of proof after the presumption of undue influence arises in a will contest. See § 733.107(2), Fla. Stat. (2002); Hack v. Janes, 878 So.2d 440, 443-44 (Fla. 5th DCA 2004) (explaining the section 733.107(2) provision and the difference between vanishing presumptions, which merely affect the burden of production of evidence, and public policy-related presumptions that provide for shifting of the burden of proof)....

...will for the witnesses to sign in the testator's and each other's presence. Simpson v. Williamson, 611 So.2d 544, 546 (Fla. 5th DCA 1992). The proponent of a will bears the burden of establishing prima facie its formal execution and attestation. See § 733.107(1), Fla....

...If execution in the manner specified is not proven, the instrument is not entitled to probate. Furthermore, in all proceedings contesting the validity of a will, the burden is upon the proponent of the will to establish, prima facie, its formal execution and attestation. § 733.107, Fla....

...on and attestation. Thereafter, the contestant shall have the burden of establishing the grounds on which the probate of the will is opposed or revocation sought. 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. Rule History 1988 Revision: New rule. Statutory Reference F.S. 733.107 RULE 5.310....

...attestation. Thereafter, the contestant shall have the burden of establishing the grounds on *1296 which the probate of the will is opposed or revocation sought. Committee Notes This rule represents a rule implementation of the procedure found in F.S. 733.107. The language of this rule is identical with the statute. Rule History 1988 Revision: New rule. Statutory Reference F.S. 733.107 Committee Vote: Unanimous RULE 5.280....

Fla. Stat. Determination of beneficiaries. § 733.107, Fla. Stat. Burden of proof in contests; presumption

review de novo the legal question related to section 733.107(2), and we review the trial court’s factual

...of producing evidence. § 90.303. The Florida Probate Code clarifies that presumptions arising from undue influence "implement public policy" that justify shifting the entire burden of proof when a presumption arises. § 733.107(2), Fla....

...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."); see also Hack v. Janes, 878 So. 2d 440, 443 (Fla. 5th DCA 2004) ("The 2002 amendment to section 733.107, adding subsection 2, was intended to incorporate sections 90.301-90.304 of the Florida Evidence Code, and require a shifting of the burden of proof after the presumption of undue influence arises in a will contest.")....

...of broad similarity between a decedent's testamentary instruments. We further hold that a probate court may consider any admissible, extrinsic evidence when measuring similarity for purposes of the doctrine's application. Consistent with sections 90.302(2) and 733.107(2), we hold that when the doctrine's presumption arises, the burden of proof then shifts to the opponent of the presumption to show that the testator held an independent, unaffected intention to revoke the otherwise affected will....

...Contrary to Appellant’s arguments, Florida law allows a POD designation to be invalidated for undue influence. Florida has a legitimate public policy interest in preventing abuse of fiduciary or confidential relationships, and has codified this interest and protected it through case law. See, e.g., § 733.107, Fla....

...laws of Florida as a business entity under section 733.305, Florida Statutes, or as an individual under sections 733.303 and 733.304, Florida Statutes. Rule 5.275 (Burden of Proof in Will Contests) is amended to correspond to legislative changes in section 733.107, Florida Statutes....

...e influence applies, the presumption shifts the burden of proof under sections 90.301–90.304, Florida Statutes. Committee Notes This rule represents a rule implementation ofimplements the procedure found in section 733.107, Florida Statutes....

...The use of the word “validity” in chapter 733 pertains to the compliance with the technical requirements of execution— signatures and witnesses—and to the testamentary capacity of the testator—the required factors for a will to be probated. Section 733.107, Florida Statutes (2018), provides that “[i]n [a] proceeding[ ] 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.” § 733.107(1), Fla....

...“Thereafter, the contestant shall have the burden of establishing the grounds 5  on which the probate of the will is opposed or revocation is sought.” Id. (emphasis added). Consistent with section 733.107, section 733.212(3), Florida Statutes (2018), provides that [a]ny interested person on whom a copy of the notice of administration is served must object to the validity of the will, the venue...

...a copy of the notice of administration on the objecting person, or those objections are forever barred. (emphasis added). Section 733.212(3)’s use of the term “validity of the will” relates back to the use of the same term in section 733.107, so it pertains to the admission of a will to probate or a revocation of probate....

...§ 732.302, Fla. Stat. Pretermitted children. § 732.507, Fla. Stat. Effect of subsequent marriage, birth, adoption, or dissolution of marriage. §§ 732.6005-732.611, Fla. Stat. Rules of construction. § 733.105, Fla. Stat. Determination of beneficiaries. § 733.107, Fla....

...te Code or Florida Guardianship Law, or rules applicable to these particular proceedings. 1992 Revision: Citation form changes in committee notes. 2003 Revision: Committee notes revised. Statutory References ch. 90, Fla. Stat. Florida Evidence Code. § 733.107, Fla....

...tion and attestation. Thereafter, the contestant shall have the burden of establishing the grounds on which the probate of the will is opposed or revocation sought. Committee Notes This rule represents a rule implementation of the procedure found in section 733.107, Florida Statutes....

...Presumption defined; inferences. § 90.302, Fla. Stat. Classification of re-buttable presumptions. § 90.303, Fla. Stat. Presumption affecting the burden of producing evidence defined. § 90.304, Fla. Stat. Presumption affecting the burden of proof defined. § 733.107, Fla....

...§§ 732.6005–732.611, Fla. Stat. Rules of construction. § 732.615, Fla. Stat. Reformation to correct mistakes. § 732.616, Fla. Stat. Modification to achieve testator’s tax objectives. § 733.105, Fla. Stat. Determination of beneficiaries. § 733.107, Fla....

...The rule of law in this state is that, once the party offering a will for probate has proved the formal execution and attestation of the will, the burden of proof shifts to the person challenging the will to prove facts sufficient to justify revocation of probate. See § 733.107, Fla....

...§ 732.302, Fla. Stat. Pretermitted children. § 732.507, Fla. Stat. Effect of subsequent marriage, birth, adoption, or dissolution of marriage. §§ 732.6005-732.611, Fla. Stat. Rules of construction. § 733.105, Fla. Stat. Determination of beneficiaries. § 733.107, Fla....

...- 20 - § 90.303. The Florida Probate Code clarifies that presumptions arising from undue influence "implement public policy" that justify shifting the entire burden of proof when a presumption arises. § 733.107(2), Fla....

...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."); see also Hack v. Janes, 878 So. 2d 440, 443 (Fla. 5th DCA 2004) ("The 2002 amendment to section 733.107, adding subsection 2, was intended to incorporate sections 90.301-90.304 of the Florida Evidence Code, and require a shifting of the burden of proof after the presumption of undue influence arises in a will contest.")....

...of broad similarity between a decedent's testamentary instruments. We further hold that a probate court may consider any admissible extrinsic evidence when measuring similarity for purposes of the doctrine's application. Consistent with sections 90.302(2) and 733.107(2), we hold that when the doctrine's presumption arises the burden of proof then shifts to the opponent of the presumption to show that the testator held an independent, unaffected intention to revoke the otherwise affected will....

...The Objectors contended that Navarro had exerted undue influence on their mother, and that the 2003 Will was a result of such undue influence. 2 Eventually, the parties all stipulated to a presumption of undue influence, pursuant to section 733.107(2), Florida Statutes (2019), and agreed that the burden to prove that the 2003 Will was not the product of undue influence was on Navarro, under a standard of preponderance of the evidence. The parties proceeded to trial sol...

...3 William Matthews’ daughter, Kendra Matthews, was substituted in his place in the proceedings following his death. 4  ANALYSIS AND DISCUSSION We review de novo the legal question related to section 733.107(2), and we review the trial court’s factual findings for competent substantial evidence....

...Florida law recognizes that a will procured by undue influence is void. § 732.5165, Fla. Stat. (2019). Generally, the person opposing a will has the burden to establish the grounds upon which the probate of the will is opposed, including undue influence. § 733.107, Fla....

...the presumption of undue influence “will vanish from the case,” and the 5 beneficiary does not have the burden to prove the absence of undue influence. Id. at 703-04. In 2002, the Florida Legislature amended section 733.107, adding a new subsection, which provides: (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 rel...

...The use of the word “validity” in chapter 733 pertains to the compliance with the technical requirements of execution—signatures and witnesses— and to the testamentary capacity of the testator—the required factors for a will to be probated. Section 733.107, Florida Statutes (2018), provides that “[i]n [a] proceeding[] 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.” § 733.107(1), Fla. Stat. (2018) (emphasis added). “Thereafter, the contestant shall have the burden of establishing the grounds on which the probate of the will is opposed or revocation is sought.” Id. (emphasis added). Consistent with section 733.107, section 733.212(3), Florida Statutes (2018), provides that [a]ny interested person on whom a copy of the notice of administration is served must object to the validity of the will, the venue, or the jurisdiction of...

...administration on the objecting person, or those objections are forever barred. 5 (emphasis added). Section 733.212(3)’s use of the term “validity of the will” relates back to the use of the same term in section 733.107, so it pertains to the admission of a will to probate or a revocation of probate. Here, Tendler challenges not the validity of the will but the effectiveness of the Decedent’s attempted exercise of the Rison Trust’s limited power of appointment in article 4 of the will....

...305, Florida Statutes, or as an individual under sections 733.303 and 733.304, Florida Statutes. -4-  Rule 5.275 (Burden of Proof in Will Contests) is amended to correspond to legislative changes in section 733.107, Florida Statutes....

...e influence applies, the presumption shifts the burden of proof under sections 90.301–90.304, Florida Statutes. Committee Notes This rule represents a rule implementation ofimplements the procedure found in section 733.107, Florida Statutes....