Precautions to be Considered
Founded in 1848, Genders & Partners are the oldest law firm in South Australia. As specialists in the areas of Wills and Estate Planning, we routinely take precautions to guard against vulnerable clients being unduly influenced. We insist on speaking privately with the client, so that we can satisfy ourselves that they are not being coerced, threatened or improperly influenced by other people. We also consider the client’s ability and capacity to understand and remember our advice. If English is not their first language, we will not permit a close family member (or anyone related to them) to act as their translator. In some circumstances we will insist that the client be assessed for testamentary capacity by their treating doctor, who would sign a formal certificate to confirm this.
What Is Undue Influence?
Undue influence is the act of improperly influencing someone to go against his or her natural inclination for estate distribution when creating a Will. Under this type of influence, a person may be persuaded to leave other logical and deserving beneficiaries, such as immediate family members, out of the Will or reduce the benefit they receive and instead bequeath more assets to the manipulator. An example of this scenario is when one adult child performs more of the caregiving responsibilities than his or her siblings and feels entitled to more of the estate. This child may then manipulate the vulnerable parent into changing their Will to that child’s benefit. Often the other family members will be none the wiser until the parent has died.
Undue influence typically arises where an older person’s free will has been overborne by another party.
Older people tend to be more trusting, particularly of family members. They may lack memory or cognitive skills to be suspicious of the motives of “gold-diggers”, or may fear reprisals including the withdrawal of contact from family members. This makes older people particularly vulnerable to the undue influence of predatory family or acquaintances.
Outright fraud, forgery and unconscionable conduct can also arise, such as where the victim, because of some special disadvantage or disability, has not been able to act in their own best interests and another person is the stronger party in a transaction retains or enforces the benefit of the transaction. Alternatively the victim may be mistaken as to the nature of the agreement they have been persuaded to enter-into. This could be if the older person is illiterate or does not speak or read the language in which the transaction was conducted.
What Can You Do If You Suspect Undue Influence?
If you suspect that a loved one was under duress when making his or her Will, you should consult with a specialist Wills & estate planning lawyer in Adelaide. If you are concerned that an elderly family member may have been influenced into transferring their assets to another party such that the assets to be distributed under their Will are much less than anticipated then you should seek legal advice to discuss what, if anything, may be done. It will be necessary to fully investigate the transactions which have led to the estate of the deceased family members’ current financial position and make a decision from there.
A specialist lawyer at Genders & Partners will examine the facts of the case to determine if another person exercised influence over your loved one for the purpose of benefiting under the Will. If the Court agrees, the entire Will may be declared invalid, and the Court may reinstate an earlier Will if one exists or allow the state to decide how the estate should be divided. Alternatively, if only a small portion of the Will benefits the manipulator, that portion may be thrown out, with the rest of the document remaining valid.
Sometimes after an older person dies it becomes apparent that there has been a transfer of property or other assets belonging to the vulnerable older person to another party for nil or less than market value. This is sometimes seen in circumstances where the agent under power of attorney derives a benefit for themselves at the expense of family members not involved in the transaction, who may wish to explore reversing it. If sufficient proof of wrongdoing is available it may be worth taking action against the offending party to reverse the questionable transaction. Criminal penalties may be enforced against the wrongdoers.
Wills and Estate Planning in Adelaide
From Wills & estate planning to probate & deceased estates in Adelaide, Genders & Partners has a proven track record of handling challenging scenarios discreetly, efficiently and effectively. We are just a phone call away for expert estate planning advice, so contact us today to make an appointment.