Legal malpractice in estate planning.

Lawsuits against estate planning attorneys have increased in recent years. Legal malpractice in trusts and estates is now considered to have the highest risk of exposure, representing 12% of all legal malpractice claims. Due to changes in privity laws, many states allow third-party beneficiaries to bring a lawsuit against an attorney who executed a will that is later deemed to be a product of undue influence. Experienced estate attorneys tend to be vigilant of "red flags" indicative of undue influence during the drafting and execution of a will. Because a will is the most important document most individuals sign in their lives, and it affects property rights for all time, the process should be taken seriously. Many attorneys incorrectly assume that estate planning is a simple area of law. Some less-informed attorneys believe estate planning to be a simple, fast, and easy way to make a quick buck, this could not be farther from the truth. An attorney involved in estate planning should exercise diligence and thoroughly document their work in the event they find themselves exposed to a malpractice suit. Ignoring indications of UI by the estate planning attorney can put them in a precarious position of needing to explain why they redirected a testator's estate while their client was unduly influenced.

Presumption.

Because of the secrecy and tactics leveraged by an influencer, direct evidence of wrongdoing is often impossible for the contestant of a will to produce. Access to the individual is typically controlled by the influencer so that friends and family are unable to observe the perpetrator engaging in manipulation, thus a challenger is often unable to provide direct evidence. In an effort to address this substantial power distinction, many states allow for the burden of proof to be shifted to the alleged influencer if certain requirements are satisfied. Jurisdictions vary as to the requirements, but in general, the burden is shifted when the combination of a confidential or fiduciary relationship with the donor and suspicious circumstances are found. Such circumstances include:

Old age and weakened physical or mental condition of the testator.

Lack of consideration of the bequest.

Unnatural or unjust disposition of the property.

Participation of the beneficiary in procuring the gift.

Domination or control over the donor by the beneficiary.

Secrecy, concealment, or failure to disclose the gift.

Once shifted, the proponent of the contested will is tasked with rebutting the presumption. The alleged influencer is required to prove that the testator made the will of their own volition, and was not under any influence at the time it was executed.

History.

Undue influence originated from English common-law in a doctrine from 1617. Chancellor Bacon found that a woman who "worked on the simplicity and weakness" of an elderly man was guilty of undue influence.