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You’re Doing It Wrong: Presumptions of Undue Influence

There are times when a parent or loved one may ask for your help in creating a Trust or Will. It is natural that when people want to put their affairs in order, usually near the end of life, they look to those who help them with everything else. The problem, however, is that there are certain presumptions that can arise at times when a person who is a close family member, an agent under a durable power of attorney, or a Trustee, undertakes to assist with procurement of a Will of Trust of which he or she is the beneficiary.

For example, under the concept of undue influence, a presumption arises that a Will or Trust was procured by undue influence where the person who is benefitted by the documents: (1) is in a confidential relationship with the elder (including close family members, or agents and Trustees, which are legally presumed to be confidential relationships), (2) actively procures the documents, and (3) is unduly benefitted by the change. If you are an agent for an elder and you type up the Trust or Will document, you just checked off two of the three items to raise a presumption that will hurt you and your beneficial interests under the Trust or Will. You can bet that the opposing party will argue the presumption and it will then be your job to argue against it. Luckily, you may still be able to get out of the presumption if the gift you receive is not “undue.” But why even argue that point?

The better approach is NOT to draft a Will or Trust for an elder, but rather to direct them to an attorney who can do that for them. I know that few people see the value in attorney drafted estate plans, especially with so many low cost alternatives available. But there are two big advantages for an attorney drafted plan (1) they tend to be more thorough and worded more properly so that the plan is easily enforceable, and (2) drafting attorneys carry great weight in court. Let me repeat that: drafting attorneys carry great weight in court. In other words, someone who is seeking to overturn a Trust or Will has a much harder job if there is a drafting attorney who testifies in favor of the Trust or Will. The law requires the court to give drafting attorneys’ testimony great weight—which would probably happen naturally since judge are lawyers too.

That means that an attorney drafted estate plan has the added benefit of being defensible if ever challenged in court. If you draft up a Will or Trust on your own, you do not have this protection when the document is challenged. Think of an attorney drafted estate plan as a type of insurance policy. And think of plans you help someone draft as a disaster waiting to happen.