Spotting undue influence is no easy task for estate planning attorneys. When Mom wants to change her trust to favor Sally over Johnny, Mom presumably is making her own choice for her own reasons. But it’s also possible that Sally, behind the scenes, is pushing Mom to make the change.

An estate planner is like a mariner viewing an iceberg. The top 10 percent of an iceberg is visible above the ocean’s surface while the bottom 90 percent is unseen and potentially hazardous. A planning attorney typically interacts with the client for a relatively brief period of time outside of the client’s home, and is unfamiliar with the events that led up to the client’s arrival. So what can the attorney do to look out for undue influence?

As discussed in an earlier post, California Welfare and Institutions Code section 15610.70 defines undue influence as “excessive persuasion that causes another person to act or refrain from acting by overcoming that person’s free will and results in inequity.” The statute creates a non-exclusive checklist of factors that California courts consider in evaluating whether an estate planning change should be invalidated on the basis of undue influence. Estate planners should keep these factors in mind when working with clients.

While estate planners are not omniscient, and evaluation time may be limited, attorneys can better avoid undue influence problems by following a few steps.

Step 1: Evaluate Whether California’s Donative Transfer Statute Applies

The California Probate Code presumes that certain donative transfers are the product of fraud or undue influence. While transfers to close family members are exempt, the statute generally reaches “care custodians” such as paid home health care workers who assist seniors. If the proposed gift falls within the statute, the presumption of invalidity may be avoided (in some circumstances) if the drafting attorney, or another attorney, prepares a “certificate of independent review” as to the absence of undue influence that meets the statutory requirements.

Step 2: Look for Inequality or Abrupt Changes, Especially Late in Life

If (as is usually the case) the donative transfer statute does not apply, estate planners should apply closer scrutiny when family members of the same relation are treated differently. Of course, a parent can favor one child over another for any reason or no reason at all, but the planner should ask why and document the client’s answer in the file. If the proposed disposition represents a major departure from prior plans, or occurs late in life, the planning attorney should take a closer look at the circumstances and rationale.

Step 3: Consider the Vulnerability of the Client

The planning attorney should assess the vulnerability of the client, including her mental capacity, physical health, age, isolation and dependence on others. Indications of vulnerability, such as a dementia diagnosis, should be explored. While the client may have sufficient mental capacity to make or amend her estate planning documents, impairments in cognition such as deficiencies in short term memory may leave the client more susceptible to undue influence. Medication administered for physical ailments might impair cognition. It may be helpful for the attorney to speak with the client’s treating physicians or hire a specialist to evaluate the client’s capacity. If the client wants to disfavor a child, an estate planner who conducts a thoughtful evaluation of the client’s vulnerability will have a firmer foundation on which to refute a claim of undue influence.

Step 4: Explore the Relationship Between the Client and Anyone Facilitating the Planning

It is common for elders to involve friends or family members in the estate planning process. The elder may need help getting to/from the planning attorney’s office and may want someone to sit in with her during the estate planning discussion. However, if the “helper” is favored in the proposed estate planning change, the planner should take steps to ensure that the client is making her own decisions. Indeed, a common issue in undue influence cases is whether the alleged influencer “actively procured” the estate planning change.

Anticipating such a concern, the planner should meet privately with the client to explore her estate planning intent, and document the content and duration of that private conversation in the file. If the client depends on the “helper” for day-to-day necessities of life, such as food and medical care, the planner might ask questions to determine whether the client retains free will with respect to the estate planning at hand. Also, the planner should encourage meaningful conversation between the client and the witnesses who will sign her will because the attestation clause they will execute includes a representation that the client is not acting under undue influence. The witnesses may provide helpful testimony in this regard, but only if they actually observed the client. Given that California undue influence litigation often occurs many years after the underlying events, detailed notes in the file indicating the client’s free will may provide pivotal evidence as to the absence of undue influence.

Conclusion

The “unsinkable” Titanic sailed too fast on a moonless night. Estate planning attorneys who actively look out for undue influence, and keep a written log of their efforts for posterity, are more likely to keep their estate plans afloat.