In order to detect undue influence, drafting solicitors should have a solid understanding of the doctrine, and of the facts that often indicate that undue influence is present. In developing their own protocol for detecting such indicators, lawyers may wish to address the following questions:
- Is there an individual who tends to come with your client to his/her appointments; or is in some way significantly involved in his/her legal matter? If so, what is the nature of the relationship between this individual and your client?
- What are the familial circumstances of your client? Is he or she well supported? Does that support come from one family member? If so, is there a relationship of dependency between the client and this person?
- If the client does not have familial support, does he or she benefit from some other support network, or is the client isolated?
- Is the client independent with respect to personal care and finances, or does he or she rely on one particular individual, or a number of other individuals? Is there any connection between such individual(s) and the legal matter for which your client is seeking your assistance?
- Is there conflict within your client’s family?
- Based on conversations with your client, his or her family members or friends, what are his or her character traits?
- Has the client made any gifts? If so, in what amount, to whom, and what was the timing of any such gifts?
- Have there been any recent changes in the planning document(s) in question? What was the timing of such changes and what was the reason for the change? For instance, did any changes coincide with a shift in life circumstances, situations of conflict, or medical illnesses?
- If there have been recent changes in planning documents, was independent legal advice sought? Was the client alone with his or her lawyer while providing instructions? Who were the witnesses to the document, and why were those particular witnesses were chosen?
- Have different lawyers been involved in drafting planning documents? If so, why has the client gone back and forth between different counsel?
- Are there any communication issues that need to be addressed? Particularly, are there any language barriers that could limit the client’s ability to understand and appreciate the planning document at hand and its implications?
- Overall, do the client’s opinions tend to vary? Have the client’s intentions been clear from the beginning and instructions remained the same?
- Have any medical opinions been provided in respect of whether a client has any cognitive impairment, vulnerability, dependency? Is the client in some way susceptible to external influence?
- Are there professionals involved in the client’s life in a way that appears to surpass reasonable expectations of their professional involvement?
- Does the substance of the planning itself seem rational? For example, does the client’s choice of beneficiaries of a testamentary interest, or of attorneys named in a power of attorney, seem rational in the circumstances?
- Is the client making a marked change in the planning documents as compared to prior documents?
- Is the client making any substantive changes in the document similar to changes made contemporaneously in any other planning document?
- Does the client have a physical impairment of sight, hearing, mobility, or other?
When taking instructions from a client in respect of a planning document, the following are some recommended guidelines to assist in minimizing the risk of undue influence:
- Interview the client alone;
- Obtain comprehensive information from the client, which may include:
(i) Intent regarding testamentary disposition/reason for appointing a particular attorney/to write or re-write any planning documents;
(ii) Any previous planning documents and their contents, copies of them.
- Determine relationships between client and family members, friends, acquaintances (drawing a family tree of both sides of a married couples family can help place information in context);
- Determine recent changes in relationships or living circumstances, marital status, conjugal relationships, children, adopted, step, other and dependants;
- Consider indicators of undue influence as outlined above, including relationships of dependency, abuse or vulnerability;
- Make a list of any indicators of undue influence, including a consideration of the inquiries suggested above, as well as corroborating information from third parties with appropriate client directions and instructions;
- Be mindful and take note of any indicators of capacity issues, although being mindful of the distinction that exists between capacity and undue influence;
- Consider evidence of intention and indirect evidence of intention; and
- Consider declining the retainer where there remains significant reason to believe that undue influence may be at play and you cannot obtain instructions.
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 For a helpful review of tips for solicitors to prevent undue influence, see “Recommended Practices for Wills Practitioners Relating to Potential Undue Influence: A Guide”, BCLI Report no. 61, Appendix, in particular “Checklist” and “Red Flags”, http://www.lawsociety.bc.ca/docs/practice/resources/guide-wills.pdf
* For other related resources, see WEL Partners website Resources: https://welpartners.com/resources/practicechecklists
This paper is intended for the purposes of providing information only and is to be used only for the purposes of guidance. This paper is not intended to be relied upon as the giving of legal advice and does not purport to be exhaustive.