There is a growing area of dispute relating to Wills, which is centered upon undue influence.
This area involves claims by beneficiaries (or would-be beneficiaries) of Wills, that someone has influenced the person who signed the Will (the Testator) to make a distribution which shortchanges the complaining beneficiary.
The area is not well signposted by the law, and there is a lack of clarity regarding was is undue influence.
The most common scenario is this:-
A parent has several children. One child either has remained to live with the parent, or performs a significantly higher proportion of the support services (shopping, trips to doctor, cleaning, companionship etc) than the others.
It is quite common to see this child appointed sole executor, and there is no issue with that, as the position of executor (apart from the very rarely used right to be paid for the job) is a set of responsibilities, not a set of benefits.
Very often, however, we receive instructions from the parent to make an additional distribution to this child, beyond that to the other children.
Again, of itself, that is not unusual, improper or unsupportable.
Inherent in that kind of relationship, however, are the seeds of an argument for undue influence.
Obviously, those two parties are close and usually have a special relationship.
The child will often hold a Power of Attorney for the parent. The child will undertake financial and transport obligations, and it is often this child that carries out an instruction to organise for a Will to be prepared.
The record will show that it is the child that rang the law firm and engaged the firm, on behalf of the parent, to prepare the Will which favours the child. This is logical when you think about it but can be the beginning of the argument that undue influence exists
How do you stop a claim of undue influence being made?
You can’t. Any person who fits the definition of next of kin, who has a right to bring a claim for provision before the Court, can make such a claim.
How do you crush the prospects of success of a claim for undue influence?
There is a whole range of activities which will limit the prospects of success of such a claim.
If this range of steps is done well, someone thinking of making a claim may well withdraw or not make that claim because it seems hopeless. This is the outcome that a well drafted Will, following a clear and sensible preparation process, should achieve.
Indicators supporting possible undue influence
1. Were we contacted by someone other than the testator?
2. Who made the appointment?
3. Does the person live with the testator?
4. Do they live together alone?
5. Is the person receiving more than other siblings?
6. Who made that suggestion?
7. Were the two together in the building at the time of instruction?
If any of these are present then:
A. explain at the first opportunity the principal of undue influence to each of the two of them;
B. exclude the third party (TP) from any further contact with us regarding the matter, including the possibility of intercepting drafts (as far as possible);
C. bring the TP into the first part of the instructions interview and explain together, again, the undue influence process, making particular point to testator that the allegation of influence could complicate estate process;
D. ask testator if other children/beneficiaries are aware of any skewing of distribution of assets;
E. then remove the TP from the area and away from earshot;
F. do not use TP as interpreter. Hire an interpreter if necessary;
G. ask the following questions:
(i) are you certain you want to leave more to TP than to others in that category of beneficiaries?
(ii) Why?
(iii) have you thought about how others will feel about this?
(iv) is how they feel important?
(v) what has TP done in addition to others to warrant this?
(vi) what have others not done?
(vii) can I put something to this effect in Will?
(viii) if not why not?
(ix) how did you come to this conclusion?
(x) have you made this decision voluntarily?
(xi) has TP been consulted?
(xii) what was his/her involvement?
(xiii) have you considered inter vivos gift instead?
(xiv) has any threat/promise of any kind been made to you in relation to this distribution?
Ingredients for avoiding or crushing undue influence claims
1. Communication.
It is essential that the testator communicate to all beneficiaries that a Will has been prepared which favours one individual, that that Will has been made voluntarily, and that the testator wants his or her wishes honoured in full. It is important that the message is communicated to all the beneficiaries that the decision has been taken after much thought, voluntarily, and without any threat or promise having been made by the favoured beneficiary.
2. Medical evidence.
If there is even the slightest indication of a possible argument that the testator did not have capacity to understand the nature and effect of the document, get a medical report disproving this.
3. Choose a law firm with specific skills in dealing with Will preparation.
Any law firm should be able to prepare a Will. If your Will (or that of your parent) fits into the category described above, you need a firm with experience beyond the basic Will.
The law firm should immediately recognise (and have triggers and processes for) any circumstances which might support a claim of undue influence.
The firm should in fact beat you to pointing out the undue influence trigger, and explain its processes for assessing, dealing with and defeating the circumstances of undue influence.
If you are aware of any of the circumstances outlined above, point them out to the lawyer in question and ask what is their process for dealing with and managing the circumstances.
How a law firm will/should deal with undue influence issues
1. A joint explanation of the undue influence issue followed by exclusion of the beneficiary from the interview.
2. A restatement of the potential issue, and explanation that some questions need to be asked in order to protect the enforceability of the Will, and then enquiring of the testator about why and in what circumstances the decision was made to favour one beneficiary.
THERE IS NOTHING WRONG WITH LEAVING YOUR ASSETS IN AN UNUSUAL, LOPSIDED OR PARTICULAR WAY.
It is important that, when you sign your Will, you feel as though it reflects your wishes, it gives you peace of mind, and you do not feel like you have been forced to compromise or do something that you would rather not.
If, however, you are in the circumstances described above, or something similar, and if you do wish to favour one person over others in a similar position, then it is essential that you say why in the document. A short sentence explaining:
(a) why you are favouring the beneficiary;
(b) that you have done so voluntarily and after much thought;
(c) that no threat or promise has been made to you to influence you to make such a decision;
may well make all the difference to the enforceability of the distribution, or prevent a wavering potential claimant from going ahead.
