When a person is compelled or coerced to execute a last will and testament and/or a trust document by a relative, friend, loved one, or trusted advisor, there is a potential for under influence. In most instances, the person exerting the undue influence typically holds a position of trust and confidence with the person making the estate plan and causes a change in the estate plan whereby the person exerting the undue influence secures a substantially greater benefit. Obviously, the contest in cases of this kind typically comes from those who have suffered a substantial reduction in inheritance when compared to previous iterations of a will or a trust. In other instances, those contesting a will or a trust have been entirely eliminated as a beneficiary. In many of these cases, the person who is alleged to have exerted undue influence may have undertaken to provide primary care for an aging parent or friend, taken over handling the financial and other affairs for the decedent, successfully had themselves added onto bank and credit card accounts, successfully had themselves added as beneficiaries on life insurance policies or other payable on death accounts, and/or inserted themselves into the life of the decedent and exploited his or her vulnerable state for their own benefit. Oftentimes, these situations arise late in the life of the decedent at a time when the decedent was suffering from any number of conditions and/or diagnoses rendering him or her particularly susceptible to influence. Although we all believe that these situations would be easily detectable, much of time they are not. Many times these situations are not even discovered until after someone has already passed away and the person who exerted the undue influence surfaces and files an original will with the probate court identifying themselves as the primary, if not sole, beneficiary. These situations are unfortunately all too common.
For obvious reasons, the person exerting undue influence does not publicize their activities. Instead, they operate in near silence. They care for the decedent prior to death, they take the decedent to all of their appointments, the earn the trust of the decedent, they become indispensable to the decedent, they are there for the decedent when others are not, they actively isolate the decedent, they do all things to aggravate weak familial relationships while strengthening their own, they manipulate the decedent, they consistently remind the decedent of the sacrifices they are making for him or her as well as their own need for money and assistance, and they use their position to carry out their campaign with the decedent at every turn. Those who exert undue influence come in many different forms; they are the health care aide, the new spouse, the close friend, the brother or sister who draw closer to the parent who is advanced in years and in need of care, or even trusted professionals having unique access to the most intimate of financial and medical details of an elderly person. In short, there is no shame for those who make the decision to exert undue influence over another for their own benefit. Care should be taken to remain involved in the lives of your friends and family to ensure that they are not victimized by those exerting undue influence. In contrast to contests based upon lack of capacity, contests based upon undue influence do not require proof that the decedent lacked the capacity to understand the nature of his or her assets and those to whom those assets are to be distributed. A decedent can have legal capacity to sign a will and/or a trust but still be unduly influenced by another. There is a direct correlation between the deficiencies and incapacity of a person and the level of influence that is required to overcome that person’s own free will. As the cognitive deficiency becomes greater, the amount of influence required to overcome free will is reduced.
Searles & Gornitsky engages in routine efforts to ensure that all clients requesting the development and execution of an estate plan are doing so of their own free will, independent of any person(s) exerting any undue influence over them. This aspect of our practice is essential to ensuring that all of our clients get an estate plan that is precisely in line with their own intent. Although not all attorneys are vigilant in this regard, at our core, we are ever mindful of the various forces that could potentially impact the decisions of our clients. Searles & Gornitsky has processes in place to ensure that each and every client is fully in control of their testamentary plan and that there is no exercise of undue influence by any third party. To that end, our estate plans are completed only through direct consultation with our clients—not our clients' children, siblings, friends, or others. We meet confidentially with each and every client and typically without other family members or friends being present. If a client wishes to have a family member or friend present in attendance for any estate planning sessions, our firm will abide by the wishes of our client but only after appropriate one-on-one inquiries are made to ensure that such decisions are being made by the client alone and are not the result of undue influence. Situations may also arise where a married couple seek estate planning and trust services of the firm. Even in situations where a married couple seeks representation together from our firm, efforts are always made to ensure that each and every client is acting on their own volition. Having an entire division of the firm devoted exclusively to estate litigation and having been engaged in estate and trust litigation matters born of mistakes made by other attorneys, our attorneys are always mindful of the signs of undue influence—the friend or family member seeking the appointment to start or modify estate planning documents, the third party driving the client to the appointment, wanting to be involved in the estate planning process, exerting control over the client’s activities, sending emails and making calls for the client, wanting to be copied on various aspects of the plan, and the like. These activities are not tolerated at our firm and if any of these things were to happen, immediate efforts would be taken to engage in direct contact with the client to ensure that any undue influence is immediately extinguished.
Sometimes situations arise where many of the typical indicators of undue influence are present, but a client is not, in fact, being unduly influenced. There are always situations where people making estate plans change their minds about who is going to benefit from their estate when they pass away. Sometimes these decisions are made later in life, sometimes they are triggered by particular events and disputes with friends or family, and sometimes these decisions are driven by factors that do not appear reasonable to third parties. In these situations, care must be taken to determine the genuine intent of the person making the estate plan. Through direct one-on-one consultation, repeated communications, continuous contact with the client, and expert inquiry of the client, the attorneys at Searles & Gornitsky are able to make an educated and sound determination of the true intent of the client. If such a situation should arise where there are traditional signs of undue influence where no real undue influence is being exerted, care must be taken to preserve contemporaneous evidence of the true intent of the client. Specifically, repeated and exhaustive inquiry with the client outside the presence of the perceived influence regarding the true intent of the client is essential. Inquiry on the date of signing before the witnesses and the notary public is also important to ensure that, in the presence of the witnesses and notary public, the client answers questions regarding his intent, confirms that he is doing so of his own free will, that he is not being unduly influenced by any outside force, and that he is otherwise moving forward on his own volition are imperative.