Beware of ‘undue influence’

August 28, 2014 | Viewpoints | Number 17
Kevin Davidson |

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 give her entire estate to a lone surviving family member with whom she didn’t have much contact.

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, Maggie told me that 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 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.

Maggie’s 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 he/she might not otherwise make.

The British Columbia Law Institute has produced a guide that deals with recognition and prevention of undue influence. The guide includes some red flags to look out for: 

• Unusual gift to a beneficiary; a 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 interview with lawyer/notary.

• Influencer has negative and/or controlling attitude to will-maker.

After our discussion, Maggie decided to revise her will, this time naming an actual trusted friend as executor and a 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.

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 three to five years—or anytime there is a life-changing 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 or incapacity documents, please seek out a second opinion from an independent source or other trusted friend. Mennonite Foundation of Canada provides this third-party perspective at no cost to you. We also have a legal fee rebate program to encourage up-to-date will and estate planning.

Kevin Davidson is a stewardship consultant in the Calgary office of Mennonite Foundation of Canada (MFC). For more information on impulsive generosity, stewardship education, and estate and chari-table gift planning, contact your nearest MFC office or visit MennoFoundation.ca.

--Posted August 28, 2014

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