Back in 2011, I met with an elderly person to assist her with will and estate planning. “Maggie’s” intentions were to name a couple of friends as executors and gift her entire estate to a lone surviving family member with whom she didn’t have much contact.
She was Upset and Unable to Sleep
Just recently I received a call from her. Maggie was clearly upset and had been unable to sleep. She had finally gotten around to finalizing her will, but was very unhappy with the results. She asked to set up a meeting to review her will and fill me in on the details.
Over the past year, someone had befriended her at a church function and gradually earned her trust. Over time, this new friend pressured/coerced Maggie into naming her (the new friend) the executor and sole beneficiary of Maggie’s estate. This so-called friend even scheduled an appointment and drove her to the lawyer’s office. When the lawyer asked who would be the alternate beneficiary (if this friend predeceased her), the friend suggested naming her own husband. Maggie adamantly refused.
After our discussion Maggie decided to revise her will, this time naming an actual trusted friend as executor and charity as the beneficiary of her estate. She was relieved and happy with her new decisions. Within a week she had signed off on her revised will which now reflected her true intentions.
Signs of Undue Influence
This situation had many of the signs of “undue influence.” This occurs when the person making the will is not acting independently. Instead, the will-maker is being influenced into making a decision they might not otherwise make. The British Columbia Law Institute has produced a guide that deals with recognition/prevention of undue influence*.
The guide includes some red flags to look out for:
- Unusual gift to a beneficiary; sudden change for no apparent reason; frequent changes.
- Influencer initiates instructions which also benefit influencer; beneficiary speaks for will-maker.
- Influencer is overly helpful.
- Influencer insists on being present during the interview with lawyer/notary.
- Influencer has negative and/or controlling attitude to will-maker.
We can learn a number of lessons from Maggie’s experience
Don’t wait until tomorrow to get your will and incapacity documents updated and finalized. You can’t predict when your life will change temporarily or permanently. Be sure to communicate your plans with your representatives and beneficiaries; even giving them a copy of the documents. Review your documents every 3 to 5 years – or anytime there is a life event – to ensure your wishes are current and reflect your estate goals. Good intentions are not a substitute for a will regardless of how outdated it is. According to one lawyer, it is not uncommon for a single older individual to name the same person as executor and beneficiary. Single individuals have greater opportunities to consider charity as a significant beneficiary in their will.
If you or someone you know feel that you have been unduly influenced into making unwise changes or decisions in your will and/or incapacity documents, please seek out a second opinion from an independent source or other trusted friend. Abundance Canada provides this 3rd party perspective at no cost to you.
*The British Columbia Law Institute publication, Recommended Practices for Wills Practitioners Relating to Potential Undue Influence: A Guide can be reviewed here: http://www.bcli.org/sites/default/files/undue%20influence_guide_final_cip.pdf
by Kevin Davidson, Gift Planning Consultant in Calgary, Alberta
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