Don’t be offended when I kick you out of my office

It happens on a weekly basis. An elderly client arrives at my office for their estate planning consultation, accompanied by one of their children. Sometimes too old to drive themselves, sometimes hard of hearing, sometimes not fluent in English, almost invariably uneasy about meeting with a lawyer whom they have never met. They insist that their son or daughter sit in on the meeting.

I recognize these clients before we even greet each other. As the receptionist sends them down the long hallway to my office, I walk out to meet them halfway. I observe the dutiful son or daughter, walking them down the hall, holding their hand, or lending an arm for support. What gives them away is the other hand, which is usually holding a notebook or a laptop, where they are prepared to take copious notes on the information and legal advice their parents are about to receive.

I let them all sit down in the conference room before I break the bad news to the son or daughter. “I’m so sorry, but you are going to have step out of my office.” I then brace myself for the reaction. Funny enough it’s always the parents that get more indignant than the kids. Their response is usually something to the effect of “Well it’s my consultation. I’m paying for it. And I want them here.” At which point, I respond, “If you are only here for a consultation and don’t plan on hiring me, then fine. But if you are going to hire someone else to do the work, you are probably going to pay a second consultation fee.” So I’ve decided to write this article so that I can send it to potential clients before they come for their initial visit.

Often times, the son or daughter that brings their parents to the estate planning meeting is the child who has undertaken the lion’s share of caregiving responsibilities for the parent. It’s the child who takes them to their doctor appointments, the child who picks up their medications, who does their grocery shopping, and sometimes even the child who moves the parent into their house. So how do parents repay this loyalty and devotion? Frequently, with a larger inheritance than the rest of the brood. If the family is not particularly close, when the parent dies, the children whose shares have been diminished will question the motives of the child who undertook the parent’s care. Over the years I have seen several cases where this questioning of motives is well deserved. But many times it is not.

When a beneficiary is unexpectedly disinherited, or unsatisfied with a testamentary gift left to them, they will frequently petition a court to invalidate the trust, will or other donative instrument rendering that consequence. The validity of the documents prepared by the lawyer is directly tied to the circumstances surrounding how the documents came into existence. And when the aggrieved children seek to invalidate the trust in court, the drafting lawyer is the key witness. 

I have been subpoenaed to testify at trial and have been deposed, to answer questions about trusts that I have drafted. Typically, the very first questions I get asked are “Who brought the decedent to your office? Who sat in on the consultation?  Who participated in the meeting? Who paid your fees?”

If the answer to any of these questions is the child or beneficiary who is receiving a proportionally larger portion of the estate, rest assured the attorney for the aggrieved beneficiary, if experienced and skilled, will take those facts and exploit them to paint a picture of a beneficiary-child, who manipulated his or her parents to seek personal gain at the expense of their siblings.

In 2014 the California legislature codified the definition of undue influence. Undue influence is a legal doctrine which parties use to argue that contracts, or trusts or wills should be invalidated. The new definition of undue influence in California law, states that the court must consider whether the individual, who is claimed to have influenced another, engaged in any action to initiate changes in the victim’s personal or property rights. Under California common law, in the case of Estate of Yale, a California Supreme Court case from 1931, the court found that there was undue influence based upon the fact that the chief beneficiary under the will was “active in procuring the instrument.” A good attorney can argue that a number of facts could constitute “active procurement.” Some of these might be (1) paying the attorney’s fees, (2) finding the lawyer, (3) driving the parents to see the lawyer, and (4) actively participating in the consultation between the lawyer and the parents.

If a client wants to leave one of their children a larger portion of their estate than the others, it is ABSOLUTELY IMPERATIVE that the favored child does not have any involvement in the process by which the estate planning documents are created. So, to the children of the parents who plan on visiting me one day: please don’t be offended when I kick you out of my office or refuse to take your money. I promise, it’s for your own good.

By Mario Vega

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