How To Avoid Claims of Undue Influence in Estate Planning
It is difficult to define due influence because it is specific.The term "undue influence" refers to someone overpowering the will of another person.If the will or trust reflects the actual wishes of the client, his or her wishes will be honored.A legal challenge can be brought to the will or trust if someone has influenced the estate planning.If your client is operating under the influence of another, you should pay attention to some red flags.
Step 1: You should pay attention to who contacts you.
It's difficult to define due influence.There are some common factual scenarios.An elderly client is taken care of by someone.The person who contacts you to create a will or trust then takes the lead in the estate planning process by answering all of your questions.Don't forget to pay attention to who contacts you for estate planning.Did the client call you?Are you being called someone who is being left a large part of the estate?If the client wants a child to take the lead in estate planning, so be it.The client may be influenced by this person.
Step 2: Meet with the client alone.
A lawyer should talk to a client alone.caretakers, children, or friends should not be in the office with the testator.If you want to plan estates for couples, be sure to meet individually with each person.There may be an issue with capacity if the client need someone in the room with them.Testators need to know the nature of their property, the purpose of the will, and the people who could claim it.If your client doesn't understand these things, he or she might not have enough capacity to create a will or trust.You should never meet with a beneficiary alone.You could undermine your credibility as an independent attorney if you did that.
Step 3: Determine the client's health.
The client may be ill or frail.People are pressured to change their will by others.If the client doesn't change their will, they may begin to fear losing their care.At your first consultation, you need to perform an honest assessment of the client's health.How fit is he or she?Does he or she suffer from depression because of the death of a spouse or child?How healthy is the client?Is he or she dependent on someone else for food and medicine?The expert testimony about the client's state of mind is the most important factor in determining the success or failure of a claim of undue influence.If you want to avoid claims of undue influence, you should have an independent medical expert examine your client.
Step 4: Other risk factors should be documented.
You may be called as a witness in a will contest.The judge will want to know if you acted as an independent counsel or simply drafted the estate plan.If your client file becomes an exhibit in a will contest, you want to keep detailed notes.The new estate plan differs substantially from prior plans.The client should be asked why.A prior attorney was fired by the client.The client should share his or her reasoning.The client is isolated from other people.Ask the client if they would like you to contact their friends or family if this is true.The client has changed their attitude towards former beneficiaries.Why does the client want to disinherit someone?There is a family conflict.You should try to understand the source of the conflict.
Step 5: If you are a beneficiary, do not draft the will.
It is against the law in some states for a lawyer to draft a will.It is a good idea to avoid drafting a will under which you are a beneficiary if your state does not prohibit it.You should not write yourself in as the administrator of a will or a Trustee for a trust.You could give the client the names of several qualified estate planning attorneys.It is important that you do not give only one referral.Give several and have the client pick one of them.The client should not be given the names of lawyers you do business with or are close to.
Step 6: The gift is being made.
Some gifts may seem odd.The client might want to leave a large part of their estate to a charity.You need to understand the reasoning behind the client's gifts.Keep detailed notes of what the client tells you.
Step 7: The client has excluded children from the estate.
Children who expected to inherit all or part of their parent's estate bring will contests.If the client is cutting out his or her children, or leaving them very small portions of the estate, you should find out why.The client might have given them large gifts.
Step 8: The gifts are left to caretakers.
Money and property can be left to a caretakers out of gratitude.These gifts need close scrutiny because of the influence that can arise in this relationship.If the client puts his or her complete trust in another person, some states will assume that undue influence exists.Take a look at the size of the gift.It is one thing to give a small amount of money to a person.Leaving the bulk of the estate to this person is another thing.Check to see if the children have been cut out of the will.
Step 9: There is a need for an independent review of gifts to caretakers.
An independent attorney should review the transaction if the client wants to leave property to a non- family member.The lawyer could meet the client.The attorney tries to determine if the gift is being made because of fraud or undue influence at the meeting.In California, the independent attorney would create a statutory "certificate of independent review" which would be included with the estate plan.
Step 10: You should check your state law.
If a beneficiary challenges the will, they will lose their inheritance.It's possible to protect against a lawsuit by including a no-contest provision in the will or trust.If you have probable cause to challenge the will, some states provide a safe harbor.In Michigan, a beneficiary can challenge the will and not lose any money if the challenge is reasonable.Judicial safe havens have been created by some state courts.The courts in these states will not enforce a no-contest provision if the challenger has a reasonable belief that influence exists.
Step 11: Some property should be left to the children.
If you completely disinherit your children, a no-contest provision won't be effective.Children would have nothing to lose if you contest the will or trust.You should make a bequest to people who might be interested in challenging the estate plan.
Step 12: There should be a no-contest provision.
The no-contest clause states that any attempt to void or challenge the will will not inherit it.If a beneficiary attempts to void or set aside this will or any of its provisions, the right of that person to take any interest under the will will be determined.
Step 13: The document should be reviewed by the client before the event.
The client should not trust the drafted will on the day of the execution.Give the finished documents several weeks in advance so that they can read them.The client might not be able to read.You could schedule a meeting to look over the document.
Step 14: Don't allow beneficiaries to be present during the execution.
No beneficiaries should be present when you execute a will or trust.The client should meet with the attorney and two witnesses who are not under the will.The witnesses should know the client but not be beneficiaries.A business associate would be ideal.If the witnesses have never met the client before, they don't have a clue as to whether or not he or she was under pressure to sign the will.It is best to have witnesses who have known the client for a long time.
Step 15: The day of execution, review the estate document with the client.
The witnesses can help you review the document.Ask questions of the client to get their motives in the estate plan.If the client disinhers a child, ask why: "You haven't left anything to your son, Michael."Ask why the client is leaving gifts to caretakers.You are giving your nurse a lot of money.Does she know about this gift?
Step 16: If you have concerns, decline to execute the will.
Independent judgment is a lawyer's duty.If you have doubts about the client, you shouldn't execute an estate plan.You should withdraw your representation if you have concerns about the client.If you want to keep a copy of your concerns, you should put them in a letter.You can meet the client in person to discuss your concerns.