Bridget MacKay with MacKay Dressler Law Firm. Now we’re back on the subject of capacity versus undue influence. I’ve already described what capacity means to create an estate plan, whether that’s a will or a trust. But I want to talk a little bit about undue influence, which is a very different concept.
Undue influence is when a person is acting not because of something they want to do, but because someone else is inflicting their own influence on them. And so what we’re looking for when we’re creating an estate plan, when it comes to undue influence, is really asking questions of our potential client. Whether they arrive with someone else, whether that’s an adult child, a caregiver, or a friend. We want to know what that relationship is with them. We want to see how they interact with that person, whether they require that person to come in and meet with them. We definitely ask for that person to leave at some point so that we can determine whether our potential client is acting from a desire that they truly want to create their plan around or make a change to their plan.
Because if we find that they’ve been isolated from their family members and friends, and really only having the influence of this one person that is pushing them to make a change, pushing them to make a plan, particularly if that person is in the plan, then we know that there’s a risk of undue influence. And in the case of if there is a risk, then we’re often obligated to investigate further, to make sure that our client has the capacity.
So capacity does come into an undue influence situation, but it doesn’t mean undue influence. We want to make sure they have the capacity to do the changes that they’re doing to their lives and around their wealth. We want to make sure that the people that we suspect of undue influence that we can tell are not creating or pushing, or they feel forced to make those changes because that person may take away their care, may not come visit them anymore, may not drive them where they need to go, may withhold even something as extreme as food and rides to doctor’s appointments.
So all of these factors, and I’m just talking about a limited part, play into whether someone is under the influence of an undue person, pressure basically to do things that they don’t want to do. So that’s what we’re trying to uncover and examine when we are determining or evaluating if a client is experiencing any undue influence from a person in their life in order to make the plan. So that’s capacity and undue influence.
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