61. Recommended Practices for Wills Practitioners Relating to Potential Undue Influence: A Guide

Published: 2012-01-05 00:00:00
Paper Number: 61
Project: Project on Potential Undue Influence: Recommended Practices for Wills Practitioners (2011)
Sector: Wills & Trusts,

Legal practitioners who prepare wills now take care to be satisfied that the will instructions represent the independent wishes of their clients.  A forthcoming change in the law in section 52 of the Wills, Estates and Succession Act requires some heightened awareness of the possibility of undue influence on the part of wills practitioners.  Once the section is in force, the onus of proof in cases where undue influence is alleged will shift to the defender of a will in certain circumstances.  This change heightens the need for practitioners to be able to recognize signs (“red flags”) pointing to the possibility that a client’s independent wishes are being overborne by coercive pressures and to take reasonable steps to prevent, to the extent possible, later challenges on the ground of undue influence and to record those steps.  A practitioner should anticipate being called as a witness to rebutt the new presumption of undue influence.

This Guide is intended for the use of legal practitioners who prepare wills. It was developed by an interdisciplinary committee with the support of the Notary Foundation and the Lawyers Insurance Fund.

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