Figuring out whether a client has been unduly influenced can be challenging for an estate planning lawyer.
As an initial matter, we must first be able to identify the problem. This can be difficult if another family member or 3rd party is threatening harm (physical or otherwise) if the client breaks his or her silence about being pressured.
Other times, it is the family member or friend that introduces the client to the estate planning lawyer, and the client feels pressured to allow the family member or friend to participate in the estate planning process. This is further compounded the dilemma that even if the lawyer is able to isolate the client, having a friend of family member sitting outside of the room, may be enough for the client to feel pressure.
Other telltale signs of undue influence can be assertions by the client of dishonest family members or allegations of theft. However, many times these thoughts are a result of seeds planted in the mind of the client from unscrupulous family members.
Another warning sign is if the client switches lawyers. Depending on how long he or she has been with the prior estate planning lawyer, there may be more or less of a reason to think there's been undue influence.
Even if the estate planning lawyer catches wind that the client is being unduly influenced, what is the practitioner to do?
On the one hand, the lawyer doesn't want to participate in helping further the undue influence. Therefore, the estate planning lawyer may decline to represent the client.
On the other, if the lawyer does nothing, is he or she essentially helping to perpetuate the undue influence? What if the client is forced to find someone else who is less perceptive of the existence of undue influence (or if the client and his "friend" have refined their story as a result of speaking with the estate planning lawyer to evade detection)?
Even if the lawyer ultimately determines that there is no undue influence, there's always the challenge of documenting evidence to that effect. After the passage of time, the beneficiaries may look back at the estate planning documents with a different set of eyes and perceive instances of undue influence where none actually existed.
All of these factors make estate planning challenging not only for clients with good intentions, but also for lawyers who sincerely want to do what is in the client's best interest.