Most estate planning matters present no issues of potential undue influence or incapacity. The client or clients (if a couple) meet with the attorney. They discuss the clients' goals and the best ways to reach them, develop a plan, and then implement it.
But some situations are out of the ordinary and require the lawyer to take extra steps to ensure that the client is not subject to undue influence.
Definition of Undue Influence
Before we list those circumstances, let's review the elements that must be proved to establish the existence of undue influence to invalidate an estate plan. There are four such elements which together prove undue influence:
- The estate plan involves an unnatural disposition of the estate (see 3 below),
- By a person who is susceptible to undue influence (see 1 below),
- To the advantage of someone who has the opportunity to exercise undue influence (see 2 below),
- Who, in fact, uses that opportunity to procure the favorable disposition in the client's estate plan.
It's the attorney's job, if possible, to avoid the preparation of an estate plan that is the result of such undue influence.
Here are some of the situations where lawyers need to take extra steps to ensure that the estate plan is what the client wants:
- Potential incapacity. If the client does not seem to be following the conversation or someone else in the meeting keeps speaking for her, the lawyer needs to make certain that the client meets the threshold of capacity to sign a will and other documents. In addition, failing capacity on its own makes an individual subject to undue influence.
- Opportunity for undue influence. If the client is receiving care, is isolated from certain family members, or is dependent on a particular individual, he may well be subject to undue influence.
- Unusual distribution. If the client is favoring one child over others or giving a large part of her estate to a new boyfriend, this could be the result of undue influence or failing capacity (often a combination of both).
- Haste. The need to prepare an estate plan hastily either because of impending surgery or other reasons can lead to cutting corners and could be a sign that someone involved has an undue interest in the new plan being executed. Attorneys need to take the time necessary to be careful in their drafting and to make sure they are carrying out their clients' wishes.
- Disagreement. A disagreement between married clients or a client with other family members may simply mean that they need separate counsel, but it can also be a sign either of failing capacity or undue pressure being applied.
- Intermediary. A third-party relaying the client's wishes to the attorney can mean that the client does not have capacity to relay his own instructions or that the proposed plan is that of the messenger rather than the client's.
None of these markers or red flags on their own mean that the lawyer cannot prepare an estate plan for the client—for instance, you have the right to favor some beneficiaries over others in your estate plan—just that he must be careful to determine the client's capacity and freedom from undue influence.
If any of the red flags exists, the lawyer should take two steps to ensure that she is carrying out the client's wishes. First, the lawyer needs to meet with the client alone. Second, the lawyer must meet with the client at least twice, first to develop the plan and second to review the drafted documents. If the client understands the documents and they reflect his wishes, they can be signed at the second meeting.
Some clients or family members will object to extra steps, especially when time is of the essence or it is difficult for the client to travel. In the latter case, the lawyer can make one or more home visit to the client, though this can add to legal costs, again raising client objections to the process. We can usually overcome this resistance by explaining that these steps are necessary to make sure that the estate plan stands up to scrutiny if ever challenged.
These steps are not foolproof. Even two meetings alone with the client cannot guarantee that the attorney knows what is happening in the life of the client outside of the attorney's conference room or when the attorney leaves the client's home. In addition, in the face of the requirement of two meetings, the client and the ill-doer may simply go to another attorney who doesn't have the same process. But at the very least, these steps make it less likely that the attorney will abet the furtherance of undue influence and will put grit in the wheels of anyone trying to take advantage of a senior or other susceptible person.