Brisbane’s Legal Lowdown: What happens if a Will is made under undue influence?

Ben: When 4BC Afternoons is up and rocking, you get to hear Brisbane legal lowdown with Attwood Marshall Lawyers, and even though we’re in the summer version, we have still got you covered.

And today we’re going to dive into a topic that sparks so many questions, undue influence, and what really happens when someone is pressured into changing their will. To talk about the warning signs, what families can do if something doesn’t seem right, we are joined by Attwood Marshall Lawyers Estate Litigation Senior Associate, fit that on the business card, Duncan MacDougall.

Duncan, in the context of Wills and estate planning, what does undue influence mean? Good afternoon.

Duncan: Good afternoon. Thanks for having me again. Yeah, it’s a topic that’s becoming more and more of an issue that we see creep up as our population ages. The biggest thing with undue influence is a will maker ought to write their will freely and voluntarily. When that’s not the case and you get some family members really pressuring them to do one thing or the other in terms of what they seem is right and it’s not per the wishes of that will maker, that’s where that influence comes into play.

Ben: And sadly, sometimes the first time you hear about this is when it’s too late, is when the will maker has passed.

Duncan: That’s it. Yeah, and unfortunately, that’s becoming more of an issue, is a lot of family get a little sidelined, somebody starts playing puppet and starts influencing mum, dad, whoever that they’re dealing with. And then like you said, it’s too late and a document has been changed, certain people are benefiting over others, and then you’re looking to unravel the situation after the fact.

Ben: Alright. Well, I’ll get into that. How difficult it is to unravel after the fact, but before the fact, there may be a new partner, a neighbour, even a caregiver giver that they’re some of those who traditionally have put that undue pressure or undue influence on people to change their wills. What are some of the red flags to look for before it’s too late?

Duncan: Yeah. So typically, you see the will maker or the person the person in question being isolated from family members. A lot of the times, if somebody has come out of the woodworks, an estranged person influencing mum, dad, whatever they may be, to do certain things. If property starts being sold without conversations with the family, all of a sudden, well, you’re starting to dispose of assets before you even pass away, which obviously affect what a will might already be saying in terms of that asset.

Ben: Alright, what about trying to unravel it after the fact? How difficult is that? Or is there a possibility to do that?

Duncan: Yeah. Where we really look at the preparation of the document itself, the will itself. Certain rules around preparing the will. So, the will maker has to give instructions independently of anybody, not anybody influencing anything. So, where we say the best point of call here is get your will done with a solicitor because really we do things by the book and we make sure we’re only taking instructions from them. They have to understand what they’re putting in the will, who can make a claim against their estate. All these other factors that go into it when a lot of the times we see people do their at home wills, they get son or their daughter to type it up themselves or hand write it and then put the document in front of them and say, well, mum, here you go. It’s per your wishes. Sign the dotted line. And away we go.

Then we’re left with the document that people are starting to challenge. So, but yes, it’s going to be a hard bar to prove that undue influence. But what we’re going to have to challenge is the document itself, the preparation of the document itself. So, it’s even more important to make sure things are documented. Capacity assessments are obtained at the time because if there’s a challenge about capacity, whether mum, dad knew or understood what they were doing, all these sorts of things will come into it.

Ben: How do you prove that? Doctors have to come into play there, don’t they?

Duncan: Yeah, they do and even if there’s any sort of question about pressure or any sort of issues about capacity at all, generally we’ll take instructions from them just to and we explain to clients, it’s not, we may not have issues with your capacity, but to uphold the integrity of the documents, it’s probably in your best interest that we do get a capacity assessment now, so that if somebody else challenges it down the line we can say that, well, realistically somebody in that position who can give that authority or to give that opinion has said that you have the necessary testamentary capacity to enter into a will.

Ben: That’s great advice, because that’s something I wouldn’t have thought of. It’s almost like an insurance policy, isn’t it? Where you to hey, we we’ve done this, we’ve done the capacity test at the same time that the will has been filled out to help against undue challenges.

Duncan McDougall, our guest, this afternoon from Attwood Marshall Lawyers. He is an estate litigation senior associate. I mentioned a new partner neighbour, caregiver, is there anyone else or any other, I guess outside influences we should be looking at and looking for to see these subtle changes? Because that’s the thing, it’s always subtle, isn’t  it?

Duncan: Yeah, and it can be really anybody you know. And it usually is a family member or somebody who used to be close to them or assisted with their care as they age as well. Assisted with all everything and could very well be a power of attorney, somebody who’s already dealing with their finances and their personal and health affairs. The other thing to be aware of if something were to happen and you do have serious concerns about a will whether it be the construction of the will, the preparation of the will, whether there’s capacity issues, things can happen there where you can take steps to lodge what’s called a probate caveat, basically putting a stop to the administration of that will until all these sorts of things are resolved, or at least challenged and put on to the executor of that will to say, well, we have all these sorts of concerns that have gone into the preparation of this will. We need these addressed before we’re going to administer any estate.

Ben: If you have concerns, what’s the best plan of attack there? I mean, you just said that’s the interim. To stop it. Is it going to a legal service and are they the one stop shop? Or do you have to go to all different professionals to try and work out what’s happened and what’s been at play here?

Duncan: Yeah, best interests. Before somebody passes away, get them to see a lawyer. Now you could do also have the challenge where one person may say, well, I’m going to take him to my lawyer. I’m going to take them to my lawyer, now a lawyer’s job is to make sure that notwithstanding daughter, son, whatever took mom and dad to their own respective lawyers. We’ve got to meet with them independently. We’ve got to take instructions from them personally, and notwithstanding whatever they’re saying, this is what mum wants. This is what dad wants. We need to hear from the horse’s mouth and make sure that it’s all documented. We got proper file notes. A bit of a chronology of what’s happened as well. What’s your previous intentions and making sure that they’re aware of the claims that could arise provided they’re deciding to exclude some dependent people.

Ben: Duncan, how common is it? How common is it that people actually catch this before it happens? Or is it the bulk of cases?

Duncan: A lot of the times people will start to raise red flags, and we can give them suggestions to put some notices on people. To give them. Hey, listen, we’ve got serious concerns, you’re influencing mum, dad, in a certain way, but really unfortunately you get to a point where you start to have to unravel it after the fact and that’s where we can help.

Ben: Alright, if a court finds that a will was made under undue influence, what happens next?

Duncan: Yeah. So if there’s ever a challenge about the validity of that will. Or if it’s like I said, the whole challenge about undue influence is very hard bar to cross, but it really comes down to the preparation of the document. If a court says, well, that’s not valid, it’ll be set aside. A previous will will come into effect or earlier will will come into effect in replace of that last dodgy will. Or if there’s no will…

Ben: Is that the default, not the default option, but is that the most common outcome?

Duncan: That’s the most common. That’s why it’s important that you have a bit of a chronology of your previous documents as well, especially if there’s an issue about contesting that last will, at least you’ve got a history of these other documents that were prepared. Similarly, but if this is your one will, it was prepared dodgily, everybody’s contesting it and they’re saying it wasn’t valid, then you’re dealing with the rules of intestacy as if you didn’t have a will. So, then it’s just under a legislative of who can take control of the estate and that estate is going to be administered.

Ben: The best part of these segments is the interaction from listeners, and Paul has sent a text in. Maybe you can help him out. What happens if the father has drawn up a will inappropriately in his opinion, then has a stroke and can’t communicate effectively. So what happens in that case?

Duncan: Yeah, we’ll have to see what that document looks like. Has it been executed properly? Who executed that document? Who prepared that document? Was it signed in the presence of two witnesses who all were present using the same pen? And was it signed on every page by the will maker and the witnesses.

Ben: I’m just going to pull you up there right there. So two witnesses. Need that. And you’re saying use the same pen or don’t use the same pen?

Duncan: Yeah, there could be an argument where if one say uses a black pen, one uses the blue pen. Well, there could be an argument saying, well, they weren’t all present with one another at the time. Where there’s certain little amendments were done on certain pages at a later stage, we want to make sure that the will maker known and understand what their testamentary wishes are at the time of executing the document.

Ben: See my brain went the other way. If I’m seeing the same pen used throughout you, go well hang on, that’s one person filling out everything. Right? So I would actually ask someone use a different pen to show there was two people here, but that’s the worst thing, right?

Duncan: That’s why it’s important to get the witnesses as well, because later if that will is challenged, they can go to the witnesses and say, well, what were the circumstances of the execution of this document? Were you actually present? What sort of things can you comment on about the execution of this document? And who else was in present in the room? Was there somebody in the back, somebody in somebody’s ear saying mum, you better sign this today or else?

Ben: Duncan, we have a call coming in from the Sunshine Coast, so let’s see if we can help Jake out. Jake. Good afternoon. Duncan is listening. Good day.

Jake: G’day. How are you? I just wanted to give you a quick question. So I’ve never got a definitive answer on it. We have a holiday house and it’s was obviously my mum was adopted and her parents bought it in the 60s. And when he died, he transferred her mum, transferred the will back to obviously my mum’s brother. So then there was nothing left to my mum and we found that out obviously years and years and years ago. But it was obviously past that five year point and we’ve always paid like we got the house rented all the furniture and the house is ours. We always mow the lawn because he never does anything. But then obviously my old man always says you can’t contest a will if it’s within a five year period. It’s a bit of a tricky case.

Duncan: Yeah. So in Queensland, if there’s certain eligible people there who have not been adequately provided for, there’s certain limitations in Queensland in particular, you’ve got six months from the date of death to notify the executor of intending to bring a claim. You’ve got nine months from the date of death to actually file an application with the court to actually commence proceedings. It sounds like there’s some things there that you’d need to have a chat with the solicitor about to really get to the nitty gritty of it, but there are avenues where if certain people from a deceased member, usually that falls to children, spouses, dependents can bring a claim against the estate.

Ben: So Jake’s question there was around a 5 year, I guess statute of limitations, but you’re saying it’s got to be within nine months?

Duncan: Yeah, there’s always an opportunity to bring it out of time, but there’s got to be serious reasons why and the court doesn’t look at those applications lightly. So, the best possible thing to do is act on things straight away. Get that advice straight away so that you can make sure you reserve your rights in terms of making any sort of claim.

Ben: Jake, I hope that helps you out. What I’m going to do is I’m going to put you back to the team, and they’re going to take your details. I reckon Duncan might be able to give you a call to dig deeper into this to hopefully get a satisfactory answer, but there you go. So Jake thought it was a five year and that was off what his dad was saying. Yeah. So common misconceptions. I mean, it may be the case in other states, but in Queensland nine months is the, I guess the magic number.

Duncan: Yeah. And it’s really about that notice period as well, making sure the estate is aware of what’s happening, because if you’re passed that six months and no, they haven’t received notice of a claim and they’ve made a distribution, then they may not be able to claw that back from the executor because they’ve already distributed within that time limitation.

Ben: Alright, so nine months is the red line, 6 months is the time you need to get things in order. And Duncan, we’re talking about the, I mean this is always such a highly emotional and charged time isn’t it.

Duncan: Absolutely.

Ben: You’ve got to navigate emotions.

Duncan: Yeah. Well, especially at this time of the year as well, we’re leading up to the holidays. I tell people just at this point and as much as you don’t want to talk about it. Have these conversations early. Have these conversations with your family around the dinner table. A will maker, you don’t have to disclose what you’re doing under a will. It’s a private document, but have conversations with your family to say, realistically this is what I want. You know, this is what my ultimate outcome is. If that starts to differ or if there’s serious concerns here, there’s certain things that you can do to alleviate it.

Ben: Duncan MacDougall. He’s the senior estate litigation associate from Attwood Marshall Lawyers. Appreciate your time, your insight, your expertise, and have a merry Christmas.

Duncan: Merry Christmas. Thanks for having me.