Coming to see a solicitor to be a daunting experience for many and so clients often like to bring with them friends or family members for support. In some areas of law this does not pose a problem.
When it comes to Wills and Lasting Powers of Attorney the situation is different. For solicitors who deal with Wills and Lasting Powers of Attorney (LPAs), it is vital that when taking instructions from the client, on what they would like their Will or LPA to contain, that the client is not being put under any pressure from anyone else. This is sometimes known as undue influence and it can be seen as those around the Will or LPA maker using influence or pressure on them to create their Wills or LPAs in a certain way.
When taking instructions for a Will or LPA we will see the client who is making either of those documents on their own without their friends or family present. This ensures that the solicitor is able to speak openly with their client and the client is free to raise any concerns they may have which they may not have felt they were able to speak about in front of family members or friends. By seeing clients without others present, we are seeking to protect the interests of our clients and ensure that their wishes and instructions are their own.
Undue influence can come in many forms:
A person can overpower the judgment of another, meaning they control what the other person thinks or does.
A person can persuade another to come around to their way of thinking.
A person can routinely make decisions on behalf of another rather than them making them for themselves. This could be seen by the other person answering questions for them instead of letting them answer themselves.
A person may be imposing their opinions or beliefs on another without realising they are doing so.
How this can affect Wills and LPAs? Due to undue influence the client creating the Will may feel they have to leave their estate in a particular way, for example:
June has two children Katie and Stephanie. June brings her daughter Katie to her Will appointment. Katie comments numerous times during the meeting that she is struggling financially.
June tells the solicitor that she wishes to divide her estate 70% to Katie to 30% to Stephanie because Katie needs it more.
There is no problem with June doing this by her Will, however, with Katie present in the appointment it is more difficult to ascertain whether this is how June truly wants to divide her estate or whether she feels she must because Katie is present at the appointment and has made it clear that she is in a financially worse position.
If Katie was not present at the appointment then the solicitor would be able to ask June why she is making the decision to split her estate unequally between her two daughters and whether this is what she wants to do. If the solicitor does not see June on her own and Stephanie challenges the Will then the solicitors will find it difficult to confirm that June’s instructions were given without undue pressure.
Another example could be undue influence between married couples. One of the spouses could be more dominant within the marriage regarding making decisions and imposing their views upon their spouse. The more dominant spouse may wish to for them to both leave their estate by their Wills in a particular way and the other does not feel like they can contradict what their spouse says. We also advise seeing married couples separately to ensure that their wishes are their own. Although they are a married couple the solicitor must act in the best interests of each of them as individuals.
When it comes to LPAs the undue influence can come in the form of a friend or family member or another person pressuring the person making the LPA to appoint them as their attorney. For example:
Anthony has a son Luke who is pressuring him to make an LPA for Property and Finance so that Luke can access his bank accounts and have control over his property. Anthony does not want Luke to have sole control over his assets, but he does not feel he can contradict him. If Luke were to come to the appointment with Anthony, then Anthony may not be able to speak to the solicitor openly about his concerns with having just Luke in control of his finances. If the solicitor were to see Anthony alone, these concerns could be discussed, and Anthony may decide to appoint Luke alongside another attorney so that he is not acting alone.
Whether making a Will of LPA, we as solicitors must ensure that we are creating those documents based on the wishes of our client and not what other people think our client should do. This protects our clients both now and the future to prevent any challenges to the Will or LPA by way of undue influence.
If you wish to have a Will or LPA drafted, we are here to help. Please contact Esther Janalli-Brown on 01306 884432 or email email@example.com for more information.
Meaby&Co is authorised and regulated by the Solicitor’s Regulation Authority (SRA Number 447880) and registered in England and Wales with registered number OC322672 at 2 Camberwell Church St, London, SE5 8QY.