John W. HACK, Tarinee Williams, et al., Appellants,
v.
Lorraine A. JANES, Appellee.
District Court of Appeal of Florida, Fifth District.
*441 Robert C. Wilkins, Jr., of Robert C. Wilkins, Jr., P.L., Maitland, for Appellants.
Jack B. Nichols, Orlando, for Appellee.
ORFINGER, J.
John W. Hack, Tarinee Williams, Alan Williams, Mary Ann Bertino, Diane Bertino, Dawn Bertino Mattson, and the Orlando Humane Society (Appellants), appeal an order of the probate court admitting Dorothy T. Helling's 1992 will to probate. Appellants, beneficiaries under Helling's 1990 will, challenged the probate of the 1992 will, contending that Helling lacked the testamentary capacity to execute it, and that Appellee, Lorraine Janes, exercised undue influence to procure the will under which she is a substantial beneficiary.
When this matter was first tried, at the close of Appellants' case, Janes, the proponent of Helling's 1992 will and Helling's personal representative, moved for a directed verdict.[1] The trial court granted *442 Janes's motion. On appеal, concluding that Appellants had presented a prima facie case of undue influence as required by In re Carpenter's Estate,
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. 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. In Re Estate of Carpenter.
"A presumption is an assumption of fact which the law makes from the existence of another fact or group of facts found or otherwise established." § 90.301, Fla. Stat. (2002). "A presumption... requires that `once some fact ... is established, sоme other fact at issue ... must be deemed true, at least provisionally.'" State v. Rolle,
*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 estаblish prima facie its formal execution and attestation. 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) 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 seсtions 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 presumрtion of undue influence arises in a will contest. The new statute supersedes Carpenter and Cripe v. Atlantic First National Bank,
In Beal Bank, SSB v. Almand and Associates,
Pursuant to section 90.302(2), a presumption effecting the burden of proof *444 "imposes upon the party against whom it operates the burden of proof cоncerning the nonexistence of the presumed fact." Thus, when evidence rebutting such a presumption is introduced, the presumption does not automatically disappear. It is not overсome until the trier of fact believes that the presumed fact has been overcome by whatever degree of persuasion is required by the substantive law of the case. See generally Charles W. Ehrhardt, Florida Evidence, §§ 302.1, 302.2, 303.1, 304.1 (2000 ed.).
Finally, we are lеft with a question of the quantum of proof the proponent of a will must produce to overcome the presumption of undue influence. Appellants argue that the proponent of the will should be required to prove the non-existence of undue influence and abuse of a confidential relationship by clear and convincing evidence. They argue that a higher burden shоuld be placed on those who claim substantial gifts under circumstances when a prima facie case of self-serving manipulation has been made. In support of their argument that Janes's evidentiary burden should bе clear and convincing evidence, Appellants cite Caldwell v. Division of Retirement, Florida Department of Administration,
We find no merit in the remaining issues raised by Appellants. Accordingly, the judgment is affirmed.
AFFIRMED.
SAWAYA, C.J., and PALMER, J., concur.
NOTES
Notes
[1] Since this was a non-jury trial, Janes should havе moved for an involuntary dismissal, rather than a directed verdict. Rehab. Advisors, Inc. v. Floyd,
[2] A summary of the evidence put forth by Appellants can be found in Hack I. On retrial, Janes offered conflicting evidence.
[3] Sections 90.301 through 90.304 provide:
90.301. Presumption defined; inferences
(1) Fоr the purposes of this chapter, a presumption is an assumption of fact which the law makes from the existence of another fact or group of facts found or otherwise estаblished.
(2) Except for presumptions that are conclusive under the law from which they arise, a presumption is rebuttable.
(3) Nothing in this chapter shall prevent the drawing of an inference that is appropriate.
(4) Sections 90.301-90.304 are applicable only in civil actions or proceedings.
90.302. Classification of rebuttable presumptions
Every rebuttable presumption is either:
(1) A presumption affecting the burden of producing evidence and requiring the trier of fact tо assume the existence of the presumed fact, unless credible evidence sufficient to sustain a finding of the nonexistence of the presumed fact is introduced, in which event, the existence or nonexistence of the presumed fact shall be determined from the evidence without regard to the presumption; or
(2) A presumption affecting the burden of proof that imposes upon the party against whom it operates the burden of proof concerning the nonexistence of the presumed fact.
90.303. Presumption affecting the burden of producing evidence defined
In a civil action or proceeding, unless otherwise provided by statute, a presumption established primarily to facilitate the determination of the particular action in which thе presumption is applied, rather than to implement public policy, is a presumption affecting the burden of producing evidence.
90.304. Presumption affecting the burden of proof defined
In civil actions, all rebuttable presumptions which are not defined in s. 90.303 are presumptions affecting the burden of proof.
[4] The effect of the amended statute is "to make clear that the presumption of undue influence by an actively involved substantial beneficiary who is in a fiduciary or confidential relationship with the testator is a policy-based shifting of the burden of proof. This ensures that the presumption does not `vanish' upon production of rebuttal evidence by the proponent of the will." Fla. H.R. Comm. for Smarter Government, HB 1127 (2002) Staff Analysis 5 (Mar. 6, 2002).