Daniel McGowan is an Ohio and Florida Probate Lawyer who handles complicated inheritance disputes in Florida and Ohio. He can be contacted for a free consultation – click here.
Many scholars, probate lawyers, and practitioners familiar with Ohio probate courts and the Florida probate process involving inheritance lawsuits have written extensively about proving (or disproving) claims of undue influence. The consensus generally agree that fraud and undue influence perpetrated on vulnerable persons typically isn’t conducted out in the open and most often isn’t discovered by the family of a loved one until after death. In these cases, a probate trial lawyer will work with the family to piece together the puzzle using circumstantial evidence.
The probate court has rules of evidence that the probate lawyer uses to present the case at trial. This is sometimes a daunting task since the best witness (the deceased victim of undue influence) is unavailable. The difficulty of proving an undue influence is exemplified in the recent case of Smith v. Gold-Kaplan, where an affidavit of a decedent’s friend did not rebut the presumptive validity of the decedent’s will and the executor’s evidence regarding the decedent’s testamentary capacity because the statements in the affidavit constituted inadmissible hearsay and the affidavit was not be based on personal knowledge and the friend failed to offer any evidence to corroborate the allegations contained in her affidavit.
Click here to read the entire Smith v. Gold-Kaplan opinion.