The most common reason for contesting a will is an allegation of undue influence – that is, that someone close to the person creating a will (called the “testator”) gained a substantial benefit by persuading the testator to favor that person, at a time when the testator suffered from a weakened intellect.
When an estate planning attorney meets a new client for the first time, it’s important to watch for warning signs of undue influence. After all, we all want to create valid estate plans that will stand up to scrutiny, not buy our clients a lawsuit.
Here is the advice I give other attorneys about the common warning signs that may indicate the possibility of undue influence.
The first warning sign happens when besides the testator calls to arrange the appointment, or brings the testator to the appointment, or both. The elderly and disabled often rely upon others to make appointments and provide transportation, so this occurrence alone does not necessarily spell trouble, but it could be a sign that making changes to the estate plan was not the testator’s idea.
A much more troublesome sign happens when someone speaks for the testator. For example, you ask Mrs. Jones what brings her in today and her companion says, “She wants to change her will.” Or Mrs. Jones may, when asked a question, turn her companion as if looking for the answer, at which point the companion answers your question. If either of these occurs, you will need to meet with the testator alone.
Another obvious warning sign occurs when you learn that the purpose of the meeting is to make changes to a distribution scheme that favors some beneficiary or beneficiaries at the expense of others. Again, the testator may have a sound reason for doing so and have the reasoned judgment to make that change, but it could indicate someone has influenced the testator.
Sometimes you learn in the course of your interview that the testator has received a diagnosis that potentially affects cognition, such as dementia, brain tumor, or a similar condition. Such a diagnosis alone does not preclude valid estate planning, but such a diagnosis is almost surely noted in the testator’s medical records, and could provide a basis for someone to make a contest.
Take appropriate action
Meeting with the testator alone when doing estate planning is a good practice, and vital when these warning signs appear. Excuse any companions to the lobby or waiting room.
Reassure the testator that this is your standard practice, that everything said in the meeting is confidential, and that you want to make sure that you understand his or her wishes, free from the influence of anyone else. Explore the reasons for making the desired changes at this time and note them for your file.
Ask pertinent questions to make sure the testator has capacity. If you believe the testator lacks capacity, is being coerced, or is under undue influence, do not proceed to write a will. If you can’t determine capacity with certainty, consider getting the written opinion of a doctor or psychologist. If you find the testator has capacity, and is under no coercion or undue influence, make thorough notes in your file to support your conclusion.
If you take the proper measures, the estate plans you write will be much more likely to withstand any future scrutiny.