When it comes to long-term care planning, as a trusted intermediary you can help aging clients and those with declining cognitive function. It’s a difficult topic to discuss, but wills are an important part of the continuity planning conversation. Learn how to help clients avoid undue influence during this process, while ensuring that estate plans are properly executed.
Highlighted below are some guidelines on avoiding undue influence when drafting wills from lawyer Philippe Richer, author of Knowledge Bureau’s Business Law & Contracts course, as excerpted from his law blog.
A will is a crucial document that establishes the testator’s wishes (the person making the will) when he or she dies. When lawyers assist clients in preparing their will, we must watch for certain things. First, a person must have the legal capacity to prepare a will. This means that she must be aware of what she is doing. If you’ve ever met someone with Alzheimer’s, you will know what I mean.
Second, a testator must prepare his/her will according to his/her own wishes, free from influence. However, influence in this case is measured on a scale. As lawyers, we are concerned with undue influence. It is a form of influence that, when exerted, invalidates a will.
What is considered undue influence? On the low end of the scale, influence does not create a problem. Most people consult with their family and possibly friends when determining how their assets should be distributed after they pass. If you talk to your spouse and together decide that you want your respective siblings to inherent your assets, you influenced the other spouse’s decision and vice versa. Obviously, this type of influence does not offend any legal principles. In fact, it shows that you invested some time deliberating about the topic.
On the other end of the scale, when a person exercises undue influence on a testator, a court can declare a will invalid. While theoretically, this seems simple enough, the practical implications are far from simple. In fact, courts have struggled over the years in drawing the line between ordinary influence and undue influence. In 2000, Justice Southing for the British Columbia court of appeal stated: “there is no more elusive doctrine of equity than that of undue influence”.
Undue influence occurs when a person is either forced, or manipulated into creating a will that reflects the influencer’s wishes rather than the testator’s. It must be so egregious that the testator did not have a choice. Courts go to great lengths to emphasize that “bad influence” does not meet the threshold.
So, potential beneficiaries are free to exert some influence, going as far as begging and attempting to “guilt” testators. However, potential beneficiary’s actions alone are not enough to establish undue influence. The effect on the testator must also be reviewed. If the testator is a strong willed woman, and decides on her own terms that she will accommodate a beneficiary’s wishes, she can. This does not amount to undue influence.
However, if potential beneficiaries applied exactly the same type of pressure, but the testator is not a strong willed woman, then that could meet the threshold. As you can see, determining whether influence amounts to undue influence is not an easy task.
As an advisor who is part of these conversations with families, you can help identify and prevent undue influence – in fact, it’s just one of the obligations you have to your clients when addressing multi-stakeholder issues.
Other factors involved will be addressed by special guest speaker Karen Henderson of the Long Term Care Planning Network at this Spring’s CE Summits coming to four Canadian cities May 28 to June 4. This will help you in coordinating long term plans for families that includes the client, spouse and extended family caregivers to set the entire eco-system up for success when dementia or other chronic illnesses strike.
Additional Educational Resources: Learn more about how a Real Wealth Management approach to your clients’ long-term planning needs is a sound strategic approach to this multi-stakeholder issue by enrolling in the designation program today. Or, take the Business Law certificate course authored by Philippe Richer to add value to your practice by enhancing your legal knowledge.
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