The Oklahoma Bar Journal December 2022

E thics & P rofessional R esponsibility

Do I Have a Duty to Investigate Undue Influence? And Other

Things Estate Planning Attorneys Should Know By David M. Postic

U NDUE INFLUENCE IS ONE OF THE MOST INTRIGUING and perplexing concepts in trust and estate law. It embraces actions that are not necessarily deceptive enough to constitute fraud, yet not so overtly coercive as to constitute duress, exerted against someone who might not even be suffering from diminished capacity. Some instances of wrongdoing are clear and egregious – you know it when you see it. Most are much less so. Even leading academics have called undue influence a “nebulous concept,” 1 perhaps “the most bothersome … in all the law.” 2 However, it is much too prevalent to ignore.

invalidating a will.” 7 And the cri sis is expected to only get worse. 8 As key advisors to those most susceptible to this type of exploita tion, estate planning attorneys are particularly well-situated to protect clients and their estates. But what, exactly, are we obligated (or even allowed) to do? The specter of undue influence presents a mine field of complex ethical issues that lawyers must navigate carefully. To further complicate matters, scientific developments in recent years have “call[ed] into question many of the premises of … how ‘rational’ or ‘free will’ decisions are made,” 9 chang ing the way estate planners need to think about undue influence. Deciphering this area of law can seem an insurmountable task, like understanding ERISA or getting

through Thanksgiving dinner with out a family member saying some thing uncomfortable. This article aims to do three things: 1) demystify the frequently misunderstood doc trine of undue influence, 2) explain some of the key ethical obligations and pitfalls in this area of the law and 3) equip attorneys with the tools to identify (and hopefully prevent) undue influence in the estate planning context. The ethical rules of our pro fession are best understood in context. 10 To comprehend the scope of a lawyer’s duties with respect to undue influence, it is essential to know what undue influence is. Many lawyers believe, incorrectly, A PRIMER ON UNDUE INFLUENCE

A GROWING PROBLEM Approximately one in six indi viduals aged 60 and older have experienced some form of abuse or exploitation in the past year, 3 with 20-40% of those cases involv ing financial exploitation. 4 The U.S. Senate Special Committee on Aging reported that seniors lose an estimated $2.9 billion each year as a result of exploitation and undue influence. 5 Many sources suggest that figure is a dramatic underes timate, with some loss estimates reaching more than $35 billion per year. That’s greater than the gross domestic product of half the countries in the world. 6 Given the ubiquity of the problem and the stakes involved, it is no surprise that, “Undue influence is the most commonly asserted ground for

16 | DECEMBER 2022

THE OKLAHOMA BAR JOURNAL