It’s icky – the thought of cozying up to a vulnerable senior for the purpose of becoming a beneficiary of their will. But there’s another side to that coin. Isn’t it also icky for next of kin to expect an inheritance while effectively abandoning that vulnerable senior?
A senior is entitled to leave the bulk of their estate to someone who is expending the time and energy to make their last months and years better. But it’s a decision that their next of kin might attack alleging that they were subject to undue influence.
Last week, I promised to share practical steps to minimize the likelihood of an undue influence attack on a will—and, if such an attack is made, to reduce the chances of it succeeding.
The unknown begs questions. Especially when a bunch of money is at stake and the person best able to answer those questions is deceased.
Sharing information and documentation that would otherwise come out in a lawsuit might eliminate the need for one.
Feelings can get in the way. You’re being accused of having pressured a senior who you have provided loving care to. Your gut reaction is more likely “Screw you!” than “Let me help you understand the circumstances around my significant inheritance”.
There are also the often-repeated words we see on movies and television: “Anything you say can and will be used against you in a court of law”, that can lead us to fearfully clam up.
It’s excellent legal advice to keep your mouth shut in the context of a criminal investigation where you have the absolute right to remain silent and the authorities have the onus of proving your guilt beyond a reasonable doubt.
Not so much in the context of a lawsuit where you will be subject to a recorded interrogation called an examination for discovery, particularly where the law of undue influence might shift the onus of proof to you to disprove the allegations.
But I’m getting ahead of myself. Let’s step back to when the will-maker is still alive.
The first consideration is how the wish to give the gift of a substantial inheritance arose.
Maybe it arose independent of any influence at all. Maybe the beneficiary simply suggested that the senior review their estate plan, hoping that the beneficiary would be considered. Further along the spectrum of influence, the beneficiary might have suggested it, perhaps several times, before the desire to leave the inheritance developed.
It’s not “undue influence” to ask for an inheritance unless the circumstances are such that the will-maker couldn’t really say no. Undue influence is “…influence which overbears the will of the person influenced so that in truth what she does is not his or her own act”.
The circumstances are critical facts in an undue influence case.
I recommend creating and preserving evidence of those circumstances.
Consider recording a video of the will-maker describing how they arrived at their wish.
Not like the hockey players did with the young lady as described in the recent sexual assault trial: a self-serving video prompting her to agree that she was consenting.
The will-maker, motivated to ensure their wishes are followed, would best explain how they arrived at their decision in their own words. This should include an explanation about why they decided to change beneficiary designations in a previous will, if one exists, and why they are preferring the beneficiary over next of kin.
The beneficiary should independently “journal” the complete circumstances so that they can use that journal to refresh their memory if called upon at a time that might be years later.
Then there’s the will itself.
A lawyer should be hired to make the will. You’re asking for trouble by saving a few bucks with a do-it-yourself option. You might end up with a perfectly legal will, but your wishes might be tossed if an allegation of undue influence cannot be disproved after your death.
And the intended beneficiary should have as little as possible to do with the transaction with the lawyer.
The beneficiary shouldn’t have anything to do with the lawyer’s consultations. If there’s a telephone consultation, the beneficiary shouldn’t be in the residence - or at least not within earshot.
The beneficiary could give the will-maker a ride to the lawyer’s office but should stay in the waiting room during the consultation. The same for the appointment to sign the will.
And the will-maker should pay for the transaction. The will-maker, not the beneficiary, is the client.
A significant inheritance is a wonderful gift. If it arises because of undue influence, then of course it should be skuttled. But if it was the decision of the will-maker then steps should be taken to minimize the risk that the gift will be mucked with after death. In my view, it’s not greedy nor underhanded for an intended beneficiary to help a will-maker understand that risk and to help facilitate minimizing it.
This is high stakes stuff. I am providing legal information and opinions that might not fit your circumstances. Have a consultation with a lawyer who can provide fully informed legal advice if you are facing these issues. I do not provide this legal service, but I can refer you to lawyers who do.
Paul Hergott
You are encouraged to contact Paul directly at paul@hlaw.ca with legal questions and issues you would like him to write about.
