Succession Laws - Victorian Law Reform Commission

2Prevention of undue influence through other changes to thewill-making process2.34 The formalities for making a valid will, including the witnessing requirements discussedabove, are intended to reduce the risk of undue influence and fraud when a will is beingmade. 43 However, the increasing concern about older and vulnerable will-makers beingsubject to pressure concerning their wills has led some judges and commentators tosuggest other ways of preventing undue influence in the will-making process. 442.35 The key suggestion in this area of prevention is to ensure that solicitors take greater carewhen making wills.2.36 In Victoria, solicitors must comply with professional conduct and practice rules. Rule 10of the Professional Conduct and Practice Rules concerns solicitors who prepare wills thatprovide for them to receive a benefit. 45 It is the only professional rule that specificallyapplies to drafting a will.2.37 The rule generally prohibits solicitors from drafting a will under which they may receive asubstantial benefit, other than the commission they may claim if appointed executor andreasonable professional fees. Exceptions apply when they draft wills for family membersor fellow solicitors with whom they work.2.38 If the will appoints the solicitor or associate as executor, the solicitor must inform thewill-maker in writing, before the will is signed, of any entitlement to claim commissionand charge professional fees for administering the estate. If the solicitor or their firm orassociate is entitled to claim commission as executor, the will-maker must be informed ofthe option of appointing someone else, who might not make a claim.2.39 A solicitor who has doubts about a client’s capacity to make a will is currently under noprofessional obligation to obtain a medical assessment.2.40 In Victoria, there are no guidelines for solicitors making a will apart from rule 10dealing with receiving a benefit under a will. In other jurisdictions, professional bodieshave created guidelines that deal with capacity, undue influence or both. For example,the New South Wales Law Society publishes a practical guide on what to do when aclient’s capacity is in doubt. 46 The British Columbia Law Institute has published a guidefor professionals making wills on recommended practices relating to potential undueinfluence. 47 In addition to these guides, other resources exist that document good practicewhen taking instructions for a will, risk factors for undue influence, key questions fordetermining whether will-making capacity is in doubt and best practice for obtainingexpert medical reports on capacity and influence issues. 482.41 In Victoria, Seniors Rights Victoria has recently published a guide for lawyers on assetsfor care. 49 This guide addresses questions of capacity and undue influence but is mainlyconcerned with transactions during an older person’s lifetime rather than will-making.43 Kerridge, above n 16, 311.44 See, eg, Pates v Craig (Unreported, Supreme Court of New South Wales, Santow J, 28 August 1995); Kerridge, above n 16, 333; Burns,above n 17, 174.45 Law Institute of Victoria, Professional Conduct and Practice Rules (at 30 June 2005) r 10.46 Law Society of New South Wales, When a Client’s Capacity is in Doubt: A Practical Guide for Solicitors (2009). See also New South WalesAttorney General’s Department, Capacity Toolkit (2008).47 British Columbia Law Institute, Recommended Practices for Wills Practitioners Relating to Potential Undue Influence: A Guide, Report No 61(2011).48 See, for example: Nick O’Neill and Carmel Peisa, Capacity and the Law (Sydney University Press in co-operation with the Australian LegalInformation Institute (AustLII), 2011) ch 4; Pates v Craig (Unreported, Supreme Court of New South Wales, Santow J, 28 August 1995) 37;K Shulman et al, ‘Assessment of Testamentary Capacity and Vulnerability to Undue Influence’ (2007) 164(5) American Journal of Psychiatry725; New South Wales Attorney General’s Department, Capacity Toolkit (2008).49 Seniors Right Victoria, Assets for Care: A Guide for Lawyers to Assist Older Clients at Risk of Financial Abuse (2012).23