How to Avoid Claims of Undue Influence in Estate Planning

“Undue influence” is difficult to define because it is so fact-specific. Nevertheless, “undue influence” generally means that someone has overpowered the will of another person.^{[1]XResearch source} When a client creates an estate plan, his or her wishes will be honored so long as the will or trust reflects their actual wishes. However, if someone has unduly influenced the estate planning, then a legal challenge can be brought to the will or trust. As an attorney, you should pay attention to red flags that indicate your client is operating under the influence of another.

Part 1

Part 1 of 4:

Identifying Red Flags as an Attorney

1
Pay attention to who contacts you. Undue influence is difficult to define. Nevertheless, there are some common factual scenarios. One involves an elderly client who is taken care of by someone. This caretaker then contacts you to create a will or trust and takes the lead in the estate planning process by answering all of your questions.^{[2]XResearch source}
- Always pay attention to who contacts you to begin estate planning. Did the client call you? Is the person calling you someone who is being left a large part of the estate?
- It doesn’t matter if the client wants a child or caretaker to take the lead in estate planning. This is still a sign that the client may be unduly influenced by this person.
2
Meet alone with the client. A lawyer should meet to discuss estate planning alone with the client.^{[3]XResearch source} This means that caretakers, children, or friends shouldn’t be in the office along with the testator. You can plan estates for couples, but always be sure to meet individually with each person as well.
- If the client need someone in the room with them because they are “forgetful,” then there may be an issue with capacity. Remember that testators must know the nature of their property, the purpose of the will, and the people who could claim it.^{[4]XResearch source} If your client does not understand these things, then he or she could lack sufficient capacity to create a will or trust.
- You should also never meet alone with a beneficiary without the client present.^{[5]XResearch source} If you did, then you could undermine your credibility as an independent attorney.
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3
Assess the client’s health. Often, undue influence arises when the client is ill or frail.^{[6]XResearch source} People become dependent on others, who begin pressuring them to change their will. The client may begin to fear losing their care if they don’t change the will. For this reason, you need to perform an honest assessment of the client’s health at your first consultation.
- How mentally fit is he or she? Does he or she suffer from depression, e.g., because of the death of a spouse or child?
- How physically healthy is the client? Does he or she rely on someone else totally for food and medicine?
- Typically, a claim of undue influence will succeed or fail based on expert testimony about the client's state of mind (i.e., whether they were able to make independent financial decisions). To avoid claims of undue influence, have an independent medical expert examine your client in order to determine whether they can make decisions on their own.
4
Document other risk factors for undue influence. In a will contest, you may be called as a witness. The judge will want to evaluate whether you acted as independent counsel or whether you simply drafted the estate plan without analyzing potential undue influence. Because your client file is likely to become an exhibit in a will contest, you want to keep detailed notes.^{[7]XResearch source} Document potential risk factors and raise them with the client:^{[8]XResearch source}
- The new estate plan diverges substantially from prior estate plans. Ask the client why.
- The client fired a prior attorney. Have the client share his or her reasoning.
- The client is isolated from others, including family and friends. If this is true, ask the client if they would like you to contact their friends or family.
- The client has a marked change of attitude toward former beneficiaries. Ask what has changed and why the client wants to disinherit someone.
- Family conflict is present. Try to understand the source of the conflict and who might be instigating it.
5
Avoid drafting the will if you are a beneficiary. In some states, it is illegal for a lawyer to draft a will naming him or herself as a beneficiary. Even if your state does not outright prohibit this practice, it is a good idea to avoid drafting a will under which you are a beneficiary. You also shouldn’t write yourself in as the executor of a will or a trustee for a trust.^{[9]XResearch source}
- Instead, you could give the client the names of several qualified estate planning attorneys in your area. Make sure that you don’t give only one referral. Instead, give several and have the client pick one on their own.
- Also don’t give the client the names of lawyers you do business with or are personally close to.
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Part 2

Part 2 of 4:

Asking the Right Questions as an Attorney

1
Identify why the gift is being made. Some gifts might seem odd. For example, the client might want to leave all or a large part of their estate to a charity or to one individual. You should always try to understand the reasoning behind the client’s gifts.
- Keep detailed notes about whatever the client tells you.
2
Clarify why the client has excluded children from the estate. Many will contests are brought by children who expected to inherit all or part of their parent’s estate. If the client is cutting out his or her children, or leaving them very small portions of the estate, then you should find out why^{[10]XResearch source}
- Sometimes, a client has perfectly reasonable reasons for leaving little to their children. For example, the client might have given them large gifts during their life.
3
Check why gifts are left to caretakers. It is not necessarily improper to leave money and property to a caretaker out of gratitude for their care. However, these gifts deserve close scrutiny precisely because undue influence can arise in this relationship. In fact, some states will presume that undue influence exists if the caretaker has a “fiduciary” relationship, which could arise when the client puts his or her complete trust in another person.^{[11]XResearch source}
- Analyze the size of the gift. It’s one thing to leave a modest amount of money to a caretaker. It’s another thing altogether to leave the bulk of the estate to this person.
- Check whether children have been cut out of the will in favor of the caretaker.
4
Seek independent review of gifts to caretakers. If the client wants to leave property to a non-family member who is a caretaker, then you should consider having an independent attorney review the transaction. This lawyer could meet with the client. At the meeting, the attorney counsels the client about the consequences of making the gift and tries to determine if the gift is being made because of undue influence or fraud.^{[12]XResearch source}
- In California, for example, the independent attorney then would create a statutory “certificate of independent review,” which can be included with the estate plan.
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Part 3

Part 3 of 4:

Adding a No-Contest Provision

1
Check your state law. In some states, a beneficiary will lose any inheritance if they challenge the will. You can protect against a lawsuit by including a “no-contest” provision in the will or trust.
- However, some states provide a safe harbor if you have probable cause to challenge the will. For example, in Michigan, a beneficiary can challenge the will and not lose any bequest so long as the challenge is reasonable.^{[13]XResearch source}
- Also, some state courts have created judicial safe havens even when one isn’t provided by statute. In these states, the courts will not enforce a no-contest provision if the challenger had a reasonable belief that undue influence existed.
2
Leave some property to the children. A no-contest provision won’t be effective if you entirely disinherit your children.^{[14]XResearch source} In that situation, your children would have nothing to lose by contesting the will or trust.
- Accordingly, you should make a meaningful bequest to those people who you think might be motivated to challenge the estate plan.
3
Draft a no-contest provision. The no-contest clause should state the any attempt to void or challenge the will won’t inherit under the will. A sample no-contest clause might read as follows:
- “If any beneficiary under this will attempts to void, nullify, or set aside this will or any of its provisions, then the right of that person to take any interest under this will shall be determined as it would have been had such person predeceased the execution of this will without issue.”^{[15]XResearch source}
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Part 4

Part 4 of 4:

Executing the Will

1
Let the client review the document ahead of time. Don’t spring the drafted will or trust on the client the day of the execution. Instead, give him or her the completed documents several weeks in advance so that they can read the documents.^{[16]XResearch source}
- The client might have trouble reading. In this situation, you could schedule a meeting to go over the document.
2
Keep beneficiaries away during execution. When it comes time to execute a will or a trust, you should make sure that no beneficiaries are present.^{[17]XResearch source} This means that the client should meet with the attorney and two witnesses who are not being left anything under the will.
- Ideally, the witnesses should know the client in some capacity but not be beneficiaries under the will. For example, a neighbor or business associate would be ideal.
- If the witnesses have never met the client before, then they have no way of knowing whether or not the client appeared agitated or under duress when he or she signed the will. For this reason, it is ideal to have witnesses who have known the client for some time.
3
Review the estate document with the client the day of execution. With the witnesses present, you can review the estate document. Pay attention to pertinent parts of the estate plan and ask questions of the client to elicit their motivations.^{[18]XResearch source}
- For example, if the client disinherits a child, ask why: “You haven’t left anything to your son, Michael. Why did you do that?”
- Also ask why the client is leaving gifts to caretakers. “You are giving your nurse $10,000. Are you giving this gift freely?” “Does she know about it?”
4
Decline to execute the will if you have concerns. As a lawyer, you have a duty to exercise independent judgment. This means that you shouldn’t go ahead with executing an estate plan if you have reasonable doubts whether the client is operating under undue influence.^{[19]XResearch source}
- You should advise the client of your concerns and withdraw your representation.
- Ideally, you should put your concerns in a letter and keep a copy. You can then meet with the client in person to go over your concerns.
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