Writing a Will takes careful consideration. A Will should be a true reflection of the Will-maker’s intention and what they want to happen to their assets when they die. Attwood Marshall Lawyers Estate Litigation Senior Associate, Lucy McPherson, explains what undue influence and unconscionable conduct is in the context of writing a Will.
What is undue influence and unconscionable conduct?
Undue influence is a very serious topic. It is when a person’s free will is overborne by the influence of another person. It means the act they embark on is a result of coercion by another individual.
Unfortunately, people can take advantage of their older relatives and coerce or intimidate a Will-maker in order to have that person alter their Will in a way that does not truly reflect their wishes.
Unconscionable conduct is a broader term used in relation to transactions. To be considered unconscionable, conduct must be more than simply unfair. The conduct must go against conscience as judged against the norms of society. We see unconscionable conduct a lot in elder abuse cases.
Unconscionable conduct is where a benefit is gained through deliberate exploitation of a power imbalance or ‘special disadvantage’. An example of unconscionable conduct is where child persuades an elderly parent with disabilities to transfer their property to the child and that parent may have impaired capacity and may not understand what has taken place.
What is the correct process that should be followed when writing a Will?
By following the correct process when drafting your Will, you can ensure you not only protect your assets, but you consider and appoint the most suitable Executor, assign a guardian to your children, if applicable, and give specific instructions on how your assets will be distributed to your intended beneficiaries.
There are formal requirements set down by legislation in relation to how a Will is to be drawn and executed. These are in place to ensure the correct procedure is followed and the integrity of the document is preserved.
A Will needs to be executed in front of two witnesses who both need to witness the testator’s signature on the Will. The Will needs to be signed on every page of the document to make sure there are no alterations that occur to different pages once the Will has been finalised.
If the integrity of the document comes into question, then those who witnessed the signing of the document can provide evidence to the Court as to exactly what occurred at the time the document was created.
What if someone is being unduly influenced when writing their Will?
We have many enquiries from family members concerning the validity of Wills that have been signed by their parents or grandparents in circumstances where there are suspicious circumstances concerning the provision of instructions and signing of the Will. One of the most common scenarios that we face is that an elderly parent, after a long history of previous Wills which leaves their assets equally to their children, suddenly and without reason changes their Will shortly prior to their death to leave their entire estate to one particular child, or a friend or carer.
A very succinct statement of the law in relation to this area is as follows:
“To be undue influence in the eye of the law there must be – to sum it up in a word – coercion…..The testator is in such a condition that if he could speak his wishes to the last, he would say, “This is not my wish but I must do it”.
Undue influence is more than just persuading someone to write their will a certain way. Coercion must be applied. Coercion is pressure that overwhelms the testator’s own wishes. The issue of undue influence being used by a family member or beneficiary in relation to a person making or changing their Will is a very difficult matter to prove in Court.
A common example is where a child of an elderly parent unduly influences their parent to change their will in the child’s favour. If the elderly parent dies soon afterwards, their intended beneficiary must try and demonstrate to a Court the Will is not the person’s true intent and a reflection of their actual testamentary intentions.
If a beneficiary or executor believes their deceased relative has been unduly influenced, they need to act quickly and gather evidence in relation to the circumstances that surrounded the drafting of the Will and the execution of that document. The Court examines those circumstances and can make a determination.
A Court will take into account:
- Who gave instructions for the Will (if a third party has given instructions on the Will, and not the Will-maker themselves, this can be a red flag as this could suggest that the Will may not be a product of the Will-maker’s own free will and intent)
- Whether the person making the Will is someone at risk of being taken advantage of
- The nature of relationship between the parties in question and whether the influencer applied pressure or coerced the Will-maker
- If a disposition in the Will drastically differs from the terms of the former Will or a history of will-making patterns.
What is currently in place to protect vulnerable Will-makers from undue influence and unconscionable conduct?
It is important to ensure that a Will-maker sees a suitably qualified lawyer that specialises in this area. An experienced lawyer can help mitigate against these types of situations occurring. Receiving the best advice when the Will is drawn is the best protection you can have if you want to make sure your Will is upheld and your intended beneficiaries protected.
A carefully crafted strategy to avoid claims with the correct legal advice can save you and your family a lot of anxiety and ultimately, legal costs. A small investment now may avoid a much larger expense, both financially and emotionally, to your estate and your family later on.
It is also important to watch for any red flags of elder abuse and if you have concerns, contact a lawyer for advice immediately.
Case studies can be a useful tool
When consulting with clients, it is always helpful to use examples so the client can appreciate and understand what might happen if they give certain instructions. This is a great way for the client to learn about the consequences and ramifications of the decisions they may be making.
We recently encountered a young man who was concerned about his mother. One of his siblings had taken their mother, who was legally blind, to go and see a solicitor to make her Will.
The mother had been legally blind for 30 years and allegedly did not have any idea about the content of the Will she was signing. She had quite a significant estate. There are clearly some elder abuse issues arising from this situation. The mother was vulnerable and was being taken advantage of by one of her children.
How does Attwood Marshall Lawyers minimise risk of undue influence or unconscionable conduct?
Firstly, we always interview our client, the Will-maker, alone. This is best practice and helps make sure that the Will-maker’s instructions are not being overborne by anyone else sitting in the room. This is particularly important if there are suspicious circumstances arising from the family dynamic or personal relationships of the Will-maker.
Some older people can be intimidated by another person’s presence in the room when they are giving instructions in relation to important legal documents. Interviewing the Will-maker alone ensures they feel safe and secure in providing their instructions. It helps us know that those instructions are being provided as a result of their own free will and they are not being coerced by anyone else.
Secondly, we interview our clients to ensure they have the required testamentary capacity to create their Will. We need to determine whether the client understands the nature and effect of the document they are about to sign and whether they appreciate their assets and who may have a claim on their estate.
If the Will-maker does not understand the effect of a Will and the extent of their own assets, it can be a strong indicator that the person does not have the requisite capacity. In those circumstances, we would enlist a doctor to independently assess the person and validate their capacity.
Read more: Challenging a Will based on mental capacity
How can Attwood Marshall Lawyers help?
It is important to seek immediate advice if you have concerns about the validity of a person’s Will. After that person passes away, there is usually a brief window of opportunity to take steps to ensure that the Will was properly made. Challenging the validity of a Will can be daunting, so it is important to seek advice from a lawyer who is knowledgeable and has experience in this complicated area of law.
At Attwood Marshall Lawyers we have one of the largest Wills & Estates departments in Australia, which contains experienced lawyers, graduates and paralegals who practice exclusively in this area. We spend time to educate our lawyers about effectively communicating and connecting with our clients. This ensures we can offer clients the best advice and assistance when coming to terms with the provisions of their Will and estate litigation matters.
