Why This Topic Matters to Me as a Florida Estate Planning Attorney
As an estate planning and probate litigation attorney in Florida, I frequently work with families navigating complex allegations of undue influence. When a will or trust benefits one person significantly—especially a caregiver or late-in-life companion—courts may presume the influencer acted improperly. This Carpenter presumption can drastically shift the burden of proof and threaten valid estate plans.
This article is especially useful because it doesn’t just explain the law—it equips attorneys with twelve practical defense strategies to overcome that presumption. In South Florida, where multigenerational families, blended households, and late-stage estate plan changes are common, these tools help us preserve the testator’s intent while navigating the scrutiny of probate court.
Defending a Will in Florida? Here’s What It Takes to Overcome the Presumption of Undue Influence
The Florida Bar Journal, Vol. 93, No. 1, January/February 2019, Pg. 22
Twelve Ways of Proving the Negative and Overcoming the Carpenter Presumption of Undue Influence
In Florida probate law, the presumption of undue influence can quietly undo even the most carefully crafted estate plans. When a will or trust heavily favors a single beneficiary—especially one who played a role in its creation—courts often invoke what’s known as the Carpenter presumption. Once raised, it’s not the accuser who must prove wrongdoing—it’s the beneficiary who must prove that the decedent acted freely and without pressure.
This legal burden shift is daunting, particularly for caregivers, adult children, or spouses who genuinely cared for and supported the decedent. But as highlighted in a detailed Florida Bar Journal article by attorneys Larry E. Ciesla and Jack M. Ross, there’s a path forward. In fact, there are twelve of them.
Their article offers a structured framework for defending valid estate planning documents—what they call “twelve ways of proving the negative.” In other words, twelve distinct methods to rebut the presumption and preserve a loved one’s true intent.
Understanding the Carpenter Presumption
The Carpenter presumption isn’t based on actual wrongdoing—it’s based on circumstances that raise suspicion. If a beneficiary:
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Helped select the drafting attorney,
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Was present at the signing,
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Or kept the original will after execution,
…the court may infer that undue influence occurred, unless the beneficiary can show otherwise. It’s a legal shortcut designed to protect vulnerable individuals from coercion, but it can also create challenges for well-intentioned heirs.
Twelve Strategies That Can Tip the Scales
The strength of a defense lies not in disproving one fact, but in telling a full and credible story. According to Ciesla and Ross, Florida courts are more likely to find for the defense when multiple factors are present, such as:
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The testator received advice from an independent attorney
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The influencer was not involved in planning meetings or execution
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The will or trust closely mirrors previous versions
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Medical records affirm mental capacity
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Witnesses can confirm the testator’s independent thinking
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Planning was done over multiple sessions, not rushed
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The document was shared openly with others
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Bequests were consistent with lifetime relationships
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No dramatic departures from prior plans or family expectations
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Testator left behind videos, letters, or affidavits confirming their wishes
Used in combination, these elements can help persuade a court that the decedent knew exactly what they were doing—and why.
What Families Need to Know
In estate litigation, emotions run high, and allegations of undue influence can surface long after a loved one has passed. For anyone defending a will or trust, it’s critical to gather as much contemporaneous evidence as possible: emails, letters, witness recollections, even informal conversations with friends or advisors. These small pieces of evidence can become the foundation of a credible defense.
Why the Authors’ Analysis Stands Out
Attorneys Larry E. Ciesla and Jack M. Ross bring over four decades of hands-on litigation experience to one of the most difficult areas of Florida probate law: defending against the presumption of undue influence. What makes this article exceptional is not just the legal depth—it’s the practicality. The authors break down twelve concrete strategies that attorneys can use to “prove the negative” and rebut the Carpenter presumption, which is often misunderstood and difficult to overcome.
Larry Ciesla is a seasoned sole practitioner in Gainesville with deep experience in estate planning, elder law, and probate litigation, having handled will contests as early as 1980. Jack Ross, a board-certified civil trial attorney and partner at Siegel, Hughes & Ross, adds a strong litigation framework grounded in business, financial, and estate disputes. Together, Ciesla and Ross have spent over 25 years collaborating on the prosecution and defense of will and trust contests—and it shows.
Their contribution reflects a rare blend of doctrinal clarity and real-world courtroom experience. We also thank the Florida Bar Journal and the Real Property, Probate and Trust Law Section, led by Debra Lynn Boje, with editors Douglas G. Christy and Jeff Goethe, for publishing this insightful and practical resource for Florida probate litigators.
