Who is Influencing Whom?
"Undue influence" refers to a person’s will being usurped by the will of another. It is a significant problem when dealing with transfers and estate plans of the elderly or debilitated. It is the most common reason for a will contest. In Pennsylvania to establish the claim of undue influence in a will contest, the contestant must establish by clear and convincing evidence 1) that the testator was of weakened intellect when the will was executed, 2) that a person in a confidential relationship with the testator exercised influence over the testator, and 3) that such person received a substantial benefit under the will.
Usually one thinks of a friend, neighbor, caregiver, or family member as being the person doing the influencing. What about the lawyer?
When an attorney drafts a will, he or she owes the client a duty to be aware of the client’s competency, to ascertain whether the client is being subjected to undue influence, and to make reasonable inquiries about possible influence. An attorney should not draft a will for a client unless the attorney believes the testator has testamentary capacity and is free from undue influence. In making these judgments, the attorney must have undivided loyalty to the client.
But, the lawyer cannot make a reasonable inquiry about possible undue influence with undivided loyalty to the testator if the inquiry may disclose undue influence by another client to whom the lawyer also owes an obligation of undivided loyalty. It would be a conflict of interest for the lawyer to represent the testator in such circumstances. If a Beneficiary who is Lawyer’s client brings in Dad and asks Lawyer to draft a will for Dad that favors Beneficiary, there is a clear conflict.
This was the situation in the New Jersey case of Haynes v. First National Bank of New Jersey.
Charles Dutrow died in 1945 with an $8 million estate. His divorced daughter, Betty Haynes, and her two sons came to live with his widow (Betty’s mother), Isabel Dutrow. Isabel and her daughter Betty and two grandsons lived together until 1968 when the sons left the family home. Betty died unexpectedly in 1973. Isabel, then age 84, was not able to live alone, so she moved in with her other daughter, Dorcas Cotsworth, and her husband John in New Jersey.
During her life, Isabel executed five wills and several trusts all through her local lawyer, Richard Stevens. The theme was consistent - equal shares to the two branches of the family, that is, daughters Betty and Dorcas and their respective children. John and Dorcas began to persuade Isabel that changes to her estate plan were needed after Betty died, pointing out that the two Haynes boys would each receive twice as much as Dorcas’s four children if Dorcas also predeceased.
Dorcas’s husband John (Isabel’s son-in-law) arranged for Isabel to meet with the Cotsworth family lawyer, Grant Buttermore. Buttermore suggested changes and conveyed those recommendations to Attorney Stevens. Changes were made, and with each change, Attorney Stevens became less and less involved. Attorney Stevens testified at trial that Isabel Dutrow told him that Attorney Buttermore was pressuring her. Each change favored the Cotsworths more and the Haynes’s less. But aside from some lifetime gifts to the Cotsworths, equal distribution to the two branches remained.
In her next to last will, Isabel decided to give her entire estate to Dorcas if she survived and, if not, to her six grandchildren in equal shares. This cut the Haynes boys out altogether if Dorcas survived her mother. Attorney Buttermore drew up this will. As an afterthought, Isabel added a bequest of $10,000 each to all the grandchildren; probably realizing that if she didn’t, the Haynes boys would be completely cut off.
Isabel died and after the will was offered for probate, the Haynes boys appealed, claiming undue influence by Dorcas, John Cotsworth and Attorney Buttermore. The burden of proving undue influence lies upon the contestant of the will unless the will benefits someone who stood in a confidential relationship to the testator and there are additional circumstances of a suspicious nature which require explanation.
The court found there was in fact a confidential relationship between Isabel and Dorcas and between Isabel and Attorney Buttermore, and that there were suspicious circumstances (drastic changes to the will after Buttermore became counsel to Isabel) thus shifting the burden of proof to the proponents of the will.
The appeals court found that a standard of clear and convincing proof was needed to overcome the presumption of undue influence, and found that the trial court had only required a standard of the preponderance of the evidence. Therefore, it remanded the case to the trial court to determine if the proponents of the will could meet this more rigid standard.
Buttermore should have had another lawyer do the will. Preparing a will for one client that will affect another client requires consideration of a number of ethical issues. The lawyer’s obligation to provide each client with independent professional advice is the lodestone. You cannot serve two masters.
Litigation involving undue influence and lack of testamentary capacity involves the determination of the mental state of the testator. While a medical diagnosis is not dispositive of the legal issue of whether or not testamentary capacity exists, or whether a testator is susceptible to influences, it is a very important piece of evidence for the fact-finder to consider..jpg)
I always thought there should be some procedure to validate a will before the testator's death. After all, the testator is the best source of evidence about his or her intent. And the best time to assess a testator's capacity or susceptibility to undue influence is at the time the will is made, right? It always seemed bass-ackwards that these issues had to wait for probate when the best evidence was no longer available. Maybe not anymore - if the theory of this California case is adopted in other jurisdictions:.jpg)
Appointment of a Legal Guardian 
In order to be bound by a contract, a person must have the legal ability to form a contract in the first place. This legal ability is called the capacity to contract. A person who is unable, due to age or mental impairment, to understand what she is doing when she signs a contract may lack capacity to contract. 
This excellent article published in The American Journal of Psychiatry (164:722-727, May 2007) gives advice on how to document your client's capacity. Check it out:
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Maggie Kuhn started the Gray Panthers in 1970 as a response to her forced retirement at age 65. The mission of the Gray Panthers was to speak out against age discrimination, the Viet Nam war, and other political oppressions. There is no doubt that stereotyping due to age exists in contemporary society. The Gray Panthers call this kind of discrimination “ageism.” To be told "you're too old" is as disheartening as to be told "you're too young"; both statements make you a stereotype when in fact you are an individual. .jpg)
The issues surrounding diminished capacity run from whether or not an older adult should contihnue to drive, to whether he or she can live alone at home, wheter he or she can make a will, make gifts, and otherwise control finances, to whether or not a court-appointed guardian must be appointed. Often, a family’s first encounter with this question is whether or not the older adult should continue driving a car. 
