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Difference between revisions of "LSLAP File Administration Policy for Wills and Estate (16:XIV)"
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LSLAP File Administration Policy for Wills and Estate (16:XIV) (view source)
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== C. Undue Influence and Suspicious Circumstances == | == C. Undue Influence and Suspicious Circumstances == | ||
In order to ensure there is no undue influence, clinician should follow the British Columbia Law Institute guidelines below when conducting an interview with a client looking for assistance on making a will. Refer to the British Columbia Institute’s Recommended Practices for Wills Practitioners Relating to Potential Undue Influence: A Guide for more details on each of the points listed below. The guide can be accessed at http://www.bcli.org/sites/default/files/undue%20influence_guide_final_cip.pdf | |||
'''1. Interview the will-maker alone''' | |||
This practice allows the interview to satisfy him or herself that the will-maker has testamentary capacity. The exception to the practice of meeting the client alone is where one is taking joint instructions from husband and wife for mirror wills. Should it appear that the instructions are not reciprocal, other than differing specific bequest of personal items (e.g. jewellery to daughter, tools to son) one should not take further instructions. Some lawyers will not take instructions for a new will for one of the parties if that lawyer had previously taken mirror or mutual wills instructions for both. Some lawyers will take unilateral instructions that conflict with the earlier mirror will, provided they are also given express instructions to inform the client’s spouse that new will instructions have been received. | |||
'''2. Ask non-leading, open ended questions to determine factors operating on will-maker’s mind''' | |||
Examples of this type of questions include: | |||
* How/why did you decide to divide your estate this way? | |||
* Why did you choose [proposed executor] as the executor of your will? | |||
* What was important to you in making these decisions? | |||
Again, this ensures what the will-maker tells the interview and wishes to include in his/her will truly represents his/her wishes. | |||
'''3. Explore whether will-maker is in a relationship of dependency, domination or special confidence or trust''' | |||
Examples of questions to ask include: | |||
* Do you live alone? With family? A caregiver? A friend? | |||
* Has anything changed in your living arrangements recently? | |||
* Are you able to go wherever and whenever you wish? | |||
* Does anyone help you more than others? | |||
* Who arranged/suggested this meeting? | |||
* Does anyone help you make decisions? Who does your banking? | |||
* Has anyone asked you for money? A gift? | |||
'''4. Explore whether will-maker is a victim of abuse or neglect in other contexts''' | |||
When interviewing, the interviewer should be aware of the will-maker’s physical safety. If necessary and appropriate, refer the will-maker to support resources. Samples questions to consider include: | |||
* Has anyone ever hurt you? Has anyone taken anything that was yours without asking? | |||
* Has anyone threatened you? Are you alone a lot? | |||
* Has anyone ever failed to help you take care of yourself when you needed help? | |||
* Are there people you like to see? Have you seen these people or done things recently with them? | |||
* Has anyone ever threatened to take you out of your home and put you in a care facility? | |||
'''5. Obtain relevant information from third parties when possible and if the will-maker consents''' | |||
'''6. Obtain medical assessment if mental capacity is also in question, but remember that mental capacity to make a will is ultimately the legal test''' | |||
'''7. Compile a list of events or circumstances indicating undue influence. See section below for red flags.''' | |||
'''8. Make and retain appropriate records whenever red flags are present''' | |||
'''9. If suspicion remains high after reasonable investigation, decline retainer to prepare the will.''' | |||
== D. Undue Influence and Suspicious Circumstances == | |||
The British Columbia Law Institute’s list of red flags below may indicate the presence of undue influence on a will-maker. The list is non-exhaustive, and the presence of some factor does not provide an affirmation of undue influence. Use the list as a cautionary guide when preparing a will. Refer to the British Columbia Institute’s Recommended Practices for Wills Practitioners Relating to Potential Undue Influence: A Guide for more details on each of the facts listed below. The guide can be accessed at http://www.bcli.org/sites/default/files/undue%20influence_guide_final_cip.pdf | |||
Some examples of red flags that may indicate the presence of undue influence include: | |||
* Will-maker invests significant trust and confidence in a person who is a beneficiary or is connected to a beneficiary (e.g. lawyer, doctor, clergy, financial advisor, accountant, formal or informal caregiver, new “suitor” or partner) | |||
* Will-maker experiences isolation due to dependence on a beneficiary for physical, emotional, financial or other needs | |||
* Physical, psychological and behavioural characteristics of the will-maker | |||
* Circumstance related to making of the will and/or the terms | |||
* Characteristics of influencer in will-maker’s family or circle of acquaintance | |||
* Interviewer’s “gut feeling” | |||
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