From time to time, factors arise in a will-making initiative that indicate that a will is not being prepared by the testator’s own “free will” but may in fact have underlying influences of coercion or fraud. Obviously, it is critical that a will be based upon a testator’s wishes and not those of a friend or relative. Undue influence is inappropriate or excessive manipulation exerted against a vulnerable person. The perpetrators of undue influence misuse a position of trust or power to benefit themselves – or causes they support – at the expense of their victims.
A related concern often distinguished in law is that of suspicious circumstances indicating that there was some problematic situation (i.e. other than undue influence) surrounding the preparation and execution of a will or other estate planning document.
The following are examples of situations which may indicate the presence of undue influence in the will making process. One or more of them may exist in a given fact scenario and thus, great care should be exercised:
1. an individual, often a family member, who is very involved in the preparation of the will, such as giving instructions, reviewing drafts, suggesting changes while being a beneficiary under the will;
2. the lawyer has difficulty or is unable to contact the testator to confirm their instructions. This includes the lawyer never meeting with or being able to meet with the testator;
3. the lawyer receives instructions to send the will elsewhere for execution rather than in the lawyer’s office;
4. an individual that comes to all of the lawyer’s meetings with the testator;
5. an individual who continually corrects the testator to ensure s/he is stating instructions that ultimately benefit the individual;
6. a testator who is very dependent on the individual; and
7. of particular concern, when a testator arrives at the lawyer’s office with typed or handwritten instructions prepared by someone else that the testator cannot understand or explain.
The above situations presuppose that a lawyer is involved in the preparation of the will which is not necessarily the case. Having a lawyer prepare and execute the will is one of the ways that one can guard against undue influence situations. Even then, it is prudent that the lawyer take certain precautions.
For example, where elderly testators are making a will, it should be made clear that it is preferred that all meetings be in private. In this regard, it is important that a third party leave the premises before proceeding with a meeting. Case law also indicates that the third party should not even be present in the lawyer’s office.
At some point, the lawyer should meet with their client directly, especially if instructions were initially provided by way of written or verbal communications without face-to-face contact.
If it is a new client, the lawyer should examine copies of any prior wills to confirm whether the new instructions they are being given are radically different than those outlined in the previous will and if so, thereafter canvass with the client the reasons for the changes, ultimately to determine if the stated reasons make testamentary sense. If the reasons don’t make testamentary sense, this may be because undue influence or mental incapacity is at play.
The lawyer should also explore the relationship between the client and various relatives to determine whether a relationship of dependency exists, whether financial, emotional or physical, and to ensure that the testator is not under someone’s influence or under duress.
For assistance in protecting your end-of-life wishes and intentions against claims of undue influence or duress, or if you suspect that this is the case in respect of a friend or loved one’s will, please contact Andrea Kelly.
Andrea Kelly, Lawyer, has extensive experience in wills, trusts, powers of attorney and estate administration matters. She provides clients with a high standard of timely professionalism and expertise, incorporating a very thorough fact finding process. This is quite often enlightening for her clients and facilitates individually tailored services. If you would like to know more, feel free to use the easy contact form or read Andrea’s bio.