Figuring out whether a client has been unduly influenced can be challenging for an estate planning lawyer.

As an initial matter, we must first be able to identify the problem. This can be difficult if another family member or 3rd party is threatening harm (physical or otherwise) if the client breaks his or her silence about being pressured.

Other times, it is the family member or friend that introduces the client to the estate planning lawyer, and the client feels pressured to allow the family member or friend to participate in the estate planning process. This is further compounded the dilemma that even if the lawyer is able to isolate the client, having a friend of family member sitting outside of the room, may be enough for the client to feel pressure. 

Warning Signs

Other telltale signs of undue influence can be assertions by the client of dishonest family members or allegations of theft. However, many times these thoughts are a result of seeds planted in the mind of the client from unscrupulous family members.

Another warning sign is if the client switches lawyers. Depending on how long he or she has been with the prior estate planning lawyer, there may be more or less of a reason to think there's been undue influence.

Dilemma

Even if the estate planning lawyer catches wind that the client is being unduly influenced, what is the practitioner to do?

On the one hand, the lawyer doesn't want to participate in helping further the undue influence. Therefore, the estate planning lawyer may decline to represent the client.

On the other, if the lawyer does nothing, is he or she essentially helping to perpetuate the undue influence? What if the client is forced to find someone else who is less perceptive of the existence of undue influence (or if the client and his "friend" have refined their story as a result of speaking with the estate planning lawyer to evade detection)?

Evidence

Even if the lawyer ultimately determines that there is no undue influence, there's always the challenge of documenting evidence to that effect. After the passage of time, the beneficiaries may look back at the estate planning documents with a different set of eyes and perceive instances of undue influence where none actually existed. 

All of these factors make estate planning challenging not only for clients with good intentions, but also for lawyers who sincerely want to do what is in the client's best interest.

Estate planning documents that are created under "undue influence" are invalid.

Legal Definition

The California Welfare & Institutions Code Section 15610.70 defines "undue influence" as follows:

(a) “Undue influence” means excessive persuasion that causes another person to act or refrain from acting by overcoming that person’s free will and results in inequity. In determining whether a result was produced by undue influence, all of the following shall be considered:

(1) The vulnerability of the victim. Evidence of vulnerability may include, but is not limited to, incapacity, illness, disability, injury, age, education, impaired cognitive function, emotional distress, isolation, or dependency, and whether the influencer knew or should have known of the alleged victim’s vulnerability.

(2) The influencer’s apparent authority. Evidence of apparent authority may include, but is not limited to, status as a fiduciary, family member, care provider, health care professional, legal professional, spiritual adviser, expert, or other qualification.

(3) The actions or tactics used by the influencer. Evidence of actions or tactics used may include, but is not limited to, all of the following:

(A) Controlling necessaries of life, medication, the victim’s interactions with others, access to information, or sleep.

(B) Use of affection, intimidation, or coercion.

(C) Initiation of changes in personal or property rights, use of haste or secrecy in effecting those changes, effecting changes at inappropriate times and places, and claims of expertise in effecting changes.

(4) The equity of the result. Evidence of the equity of the result may include, but is not limited to, the economic consequences to the victim, any divergence from the victim’s prior intent or course of conduct or dealing, the relationship of the value conveyed to the value of any services or consideration received, or the appropriateness of the change in light of the length and nature of the relationship.

(b) Evidence of an inequitable result, without more, is not sufficient to prove undue influence."

Examples

In more simple terms, you can think of "undue influence" as pressuring another person to do something that is against their wishes and results in an unfair or unjust outcome. It may be helpful to illustrate this with a couple of examples:

1. An elderly person is pressured into changing the beneficiary of his or her estate to someone in a position of power, such as a caretaker or other family member, often to the exclusion of others.
2. Someone blackmails another to create estate planning documents leaving everything to him or her.

It's fairly obvious why undue influence results in invalid estate planning documents--they don't reflect a person's testamentary intent!

Undue influence may be difficult to detect, especially where a client shows up by him or herself and the source of undue influence is not readily apparent. This is further complicated by the fact that some people do want to leave everything to a caretaker, since that person is often the one who has spent the most time with the client.

In these scenarios, discerning whether an action is a client's free will or caused by undue influence can be challenging to say the least.

Sometimes the obstacles to transferring property for estate planning purposes are outside of your control. The restrictions may be due to your marital status or status as a registered domestic partner, or the type of asset, such as an interest in a trust for which you may be beneficiary (i.e., a trust that was not created by you, but for your benefit).

However, restrictions may also be self-imposed, such as by agreements that you have with others not to transfer your property. A major hurdle in transferring property occurs when the transferring person loses the capacity to make the transfer.

Finally, even if you have the legal ability to make the transfer, you may nonetheless, wish to retain absolute control over property.

Lack of Legal Capability

A risk faced by some individuals is the possibility that someone will challenge the estate planning documents after you pass away. This often comes in the form of a challenge to the Will or other estate planning document that you've created.

You may have heard of this terminology before, but the challenges can range from the following:

1. Failure to follow the formalities required when signing the estate planning documents. 
2. Lack of capacity, mental or otherwise, to sign the estate planning documents.
3. The assertion that there was fraud, duress, or undue influence.

Risk Minimization

If you are clearly competent, and your lawyer is not in a position where there's a conflict of interest, others are not unduly influencing the decision-making or otherwise inappropriately pressuring you to make a decision, and the proper formalities of signing your estate planning documents are followed, the risk of someone challenging your estate plan is relatively low. 

Although estate planning may present challenges even after the documents are prepared and signed, the risk of having your transfer fail can be minimized by introducing an independent lawyer to draft the documents. He or she can be on the lookout for potential future causes of challenges to your estate plan and can help you to navigate away from them.

Estate planning, for most, has as its primary objective, the transfer of one's assets. On the surface, this appears simple, but a number of factors ranging from client fears, related costs, forgetting best practices when it comes to handling ones existing and newly acquired assets, as well as outsiders who seek to take advantage can all pose obstacles in the estate planning process.

Emotions

Estate planning can often feel like going to the doctor to do your annual check-up. Many people fear facing the inevitable and putting off the tasks required to do an estate plan is often the path of least resistance.

Fortunately, if you've contacted an estate planning lawyer, you at least recognize it's importance and are making a very good first step. A large portion of clients are motivated by family members such as a spouse or child to ensure that an appropriate plan has been put in place to protect them.

Others, particularly those of high net worth, are motivated by possible tax savings to be had as a result of estate planning; however, the present costs and potential loss of control as a result of those techniques often outweigh a client's willingness to pursue them.

It's also not uncommon to find the rare breed of clients who take a deep and sometimes all-consuming interest in estate planning.

Costs

A simple, yet very common hurdle, is simply the cost of doing estate planning. Many clients are scared away by the initial investment associated with setting up a basic estate plan. However, if the estate planning lawyer has done a good job, the cost of establishing a plan and maintaining it, should only amount to a fraction of the cost associated with not having an estate plan in place. Not to mention the additional stress that can be lifted from your family members as a result of your advanced planning, which can be priceless.

Maintenance

Even the best estate planning requires regular review. Actions such as purchasing additional assets like life insurance, the creation of new accounts, or purchasing of real estate are all situations that should be revealed to your estate planning lawyer.

Failure to regularly review your estate plan and assets, may cause you not to receive the full benefits of the plan that you established. Often, something as simple as acquiring new assets directly in the name of the trust can save you considerable sums and help avoid unintended consequences such as probate at the time of your death.

Unscrupulous Third Parties

A difficulty, particularly for the elderly, are individuals who take advantage of clients' weakened emotional, mental or physical states to extract their wealth. Although it can be difficult to detect and opportunities are limited, at least part of an estate planning lawyer's observations will include an assessment of whether a client is being unduly influenced or forced to make an estate plan that is contrary to what he or she would request had they not been pressured.

As you can see, a number of factors are at play that make estate planning challenging for clients. That's why having an actual firm or lawyer that you have a relationship with can be crucial since they will be "plugged in" to your life and have semi-regular communication with you.