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Providing for a Caregiver in a Will


Many elderly people want to leave something to their caregiver out of gratitude for the care they have received. However, leaving gifts to a caregiver is a legal landmine, and we encourage all people to meet with an attorney. Leaving a gift to a caregiver can raise concerns about “undue influence,” which your heirs could use to try and invalidate a will. Contact one of our estate planning lawyers in The Villages for help.

Undue Influence & Will Contests

A will is only legal if it represents the testator’s true wishes. Undue influence exists when a person exploits their power or special relationship over a person to obtain gifts that they otherwise would not. An elderly person’s caretaker is one such person, called a “fiduciary,” so any gifts left to them often garner scrutiny.

There are legitimate grounds for concern. For example, an elderly person might rely on her nurse for food, medical care, and bathing. If this person suddenly changes her will to leave everything to her nurse, a rational person might assume that the nurse has in some way influenced the elderly testator unfairly.

Unfortunately, will contests arise only after a person dies. This means the testator (the person who wrote the will) is not around to tell a judge that they made the gift of their own free will. Consequently, some will contests succeed even though the testator was not unduly influenced.

Florida Law on Undue Influence

Anyone bringing a claim to invalidate a will carries the burden of proving their case. Florida, however, has created a burden-shifting scheme that can make things easier on those challenging a will. You can find the law at Fla. Stat. § 733.107. In particular, the burden will shift to disprove undue influence if the person challenging the will can prove the following:

  • The caretaker will receive a substantial benefit under the current will
  • The caretaker had a confidential relationship with the testator
  • The caregiver actively procured the will, which can consist in as little as being present when the will was signed

If a person can prove all three facts, then the burden shifts to the caregiver to prove by a preponderance of evidence that they did not exert undue influence. Sometimes, this is difficult to do. It can be hard to reconstruct conversations one had, and the testator is no longer living to testify. Further, if the evidence results in a tie, then a judge will strike down the gift as improper.

Ensuring You Will Stands Up in Court

If you wish to leave something to a caregiver, contact Millhorn Elder Law Planning Group. We can work to fully document the revision to your will so that a judge upholds your will. Not every gift is struck down as the result of undue influence. Indeed, we can often fully document your reasoning and convince a judge that you make the gift freely to your caregiver.

Contact our estate planning lawyers today by calling 800-743-9732. Our lawyers offer a free consultation to those who reach out to us today.


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