بِسۡمِ اللهِ الرَّحۡمٰنِ الرَّحِيۡمِ
As property prices have surged over recent decades, the value of estates has risen significantly, which could place some elderly individuals, especially those living with their adult child(ren), in a precarious position in terms of estate planning. Their dependence on family members, coupled with a fear of neglect, makes them susceptible to undue influence. Adult children, often serving as caregivers, may subtly sway their parents’ decisions regarding wills and estate matters. Solicitors, entrusted with drafting wills, bear a critical responsibility in this regard. However, some may fail to conduct due diligence, neglecting to assess the testator’s capacity adequately. Such negligence could potentially lead to legal repercussions, as solicitors may be held accountable for their oversight in safeguarding the interests of vulnerable clients. If a solicitor fails to properly assess the testator’s capacity to make a will, or where the validity of that will is questioned, they may end up being liable for the costs if a challenge arises to set aside a disputed will.
In addition to these concerns, there could also be cases of financial abuse of elderly and mentally disabled individuals. Hence, estate planning becomes crucial for protecting the elderly from coercive control. Shedding light on coercive behaviour and legal consequences is essential, particularly regarding the role of solicitors. Recent cases highlight the vulnerability of the elderly to manipulation, including actions that control or coerce victims in intimate or family relationships. Challenges arise in identifying coercion, especially in domestic settings. Solicitors play a crucial role in assessing clients' capacity and ensuring freedom from undue influence. Adherence to proper procedures and documentation is vital to prevent challenges to wills. It's imperative that all clients, especially elderly and vulnerable ones, are treated equally and with caution. Monitoring undue influence scenarios is essential to safeguard clients' interests.
Section 76 Serious Crime Act 2015 (SCA 2015) created the offence of Controlling or Coercive Behaviour in an intimate or family relationship (CCB) and the statute provides that an offence is committed against a victim if:
- The perpetrator repeatedly or continuously engages in behaviour towards the victim that is controlling or coercive;
- At the time of the behaviour, the two parties are personally connected;
- The behaviour has a serious effect on the victim; and
- The perpetrator knows or ought to know that the behaviour will have a serious effect.
It is the cumulative impact of CCB and the pattern of behaviour which is crucial.
Examples of Controlling or Coercive Behaviour can involve (but aren’t limited to):
- Isolating a person from friends and family
- Monitoring time
- Using spyware
- Controlling everyday life
- Humiliating/degrading the victim
- Taking benefits, wages or allowances
- Using substances such as alcohol or drugs to control a victim.
This is not an exhaustive list.
Cases
West Mersea man poisoned couple with fentanyl and rewrote will - court told
Royal Bank of Scotland v Etridge