Undue Influence & Abuse of Position in Estate Planning – the role of the Will Writer.

Undue influence is the act of applying pressure on a person to coerce them, essentially overpowering the individual’s own will

Wills

In relation to a Will this could mean someone putting pressure on a person to include them in their Will – either by emotional or physical threats/manipulation. When I take instruction for the writing of a Will I work hard to ensure that the testator is giving instructions freely and willingly, under no influence from anyone else in the room and is sure they have the capacity to fully understand what they are asking me to do. Undue influence is especially prevalent with the elderly, ill, or socially isolated as these types of individual are unfortunately more likely to be subjected to financial abuse and undue influence.  But I must not assume that a young, healthy person is immune from undue influence.

If a person is found guilty of undue influence a Will can be held invalid which would mean that the estate would be distributed under the rules of intestacy.

Lasting Power of Attorney

In relation to a Lasting Power of Attorney undue influence is  pressure on a donor to appoint someone as an Attorney to control either their Health & Welfare or – more usually – Property & Financial Affairs. As an attorney responsible for someone who is unable to make decisions for themselves, you are allowed to withdraw money to use for the benefit of the donor only. However, in case of abuse of position, being named as attorney for a vulnerable relative or person could mean that they able to withdraw or redirect money for their own uses.

This kind of abuse of position is classed as fraud, in 2019 a 41 year old woman was jailed for stealing over £23,000 from a vulnerable family member whilst acting as their attorney; it is a serious crime.

If you believe that an attorney named under a Lasting Power of Attorney is abusing their position, you should contact the Office of the Public Guardian on 0300 4560300.

The role of the Will Writer

As a Will Writer,  an important part of my role is to ensure, as far as possible, that my client is not being put under undue pressure while making their Will or Lasting Power of Attorney.   This includes:

  • Making a note of everyone in the room when I meet my client, and their relationships to my client.
  • Ensuring that others in the room are aware that the decisions need to be made freely by my client.
  • Asking my client direct questions, and ensuring that they are not looking to others for the answers.
  • Where necessary, I will ask others to leave the room and speak to my client in private.
  • Putting questions to my client in different ways and at different times during the meeting.
  • Ringing my client after the meeting, at a time when they are alone.
  • If I feel that my client is being put under undue influence, my last resort is to walk away – and not do the work for them (and not charge either).  I do this only where necessary as there is then the fear of the client dying intestate or being without a Lasting Power of Attorney.