In last week's blog posts, we discussed Ministerial Orders No. M161 and No. M162, which make it possible for estate law practitioners to remotely witness Wills, Powers of Attorney, and Representation Agreements. This is an important development made due to the COVID-19 pandemic as it will allow estate lawyers to remotely assist clients in executing their estate planning documents and arranging their affairs. While remote witnessing might be the safest option in present circumstances, lawyers should continue to exercise caution when doing so, and should also pay particular attention to whether their client(s) are vulnerable to undue influence.
The British Columbia Law Institute ("BCLI") discusses undue influence at length in their publication: "Recommended Practices for Wills Practitioners Relating to Potential Undue Influence: A Guide", and notes that "undue influence consists of imposing pressure that causes a person to perform some legal act, such as making a will, that does not reflect the true wishes or intentions of that person, but rather those of the influencer" (p. 5). In "Recommended Practices", above, BCLI suggests that people exerting undue influence may exploit dependencies, abuse relationships of trust and confidence, exert emotional manipulation, and/or isolate the victim.
In light of the Ministerial Orders No. M161 and M162, estate law practitioners must be especially cognizant of undue influence, and how their clients may be at risk. Lawyers will need to be diligent in recognizing the red flags to ensure their clients are not executing estate planning documents that do not comply with their true wishes. Meeting with clients remotely, as opposed to in-person, adds another layer of complexity that lawyers will have to be mindful of - is there an opportunity for someone to exert control or manipulate the will-maker while the will-maker social distances? If so, how can lawyers recognize it?
BCLI also produced "Undue Influence Recognition/Prevention: A Guide" ("the Guide"), an extremely helpful resource for lawyers assisting clients with their estate planning. This tool includes a Checklist, which lists specific items lawyers should consider and/or explore when screening for undue influence. The Guide also lists Red Flags, which suggests some behaviours or circumstances that may suggest to a lawyer that their client may be vulnerable to undue influence.
In one of our previous blog posts, we've referred to a resource produced by the Law Society of British Columbia, "Video Conferencing Technology Information". One of the LSBC's best practice tips cautions lawyers to "ensure no one else is at the remote location who may be improperly influencing the client". In this regard, consider asking your client to show you where they are via videoconference - is there anyone else in the room with your client? Is your client in a space where you can maintain privacy and confidentiality?
In sum, lawyers must be extraordinarily diligent when remotely assisting their clients with their estate planning. The resource links above offer excellent suggestions and recommendations, and are a terrific addition to every estate planner's toolkit.