June 3, 2014
Authored by: Luke Lantta
Whether you are an estate planner in a big firm or a small practice, you may find yourself preparing wills and other estate planning documents for your law partners and their family members. This can be a great, built-in client base. But, what happens if the will you prepare for your law partner’s parents benefits your partner over his sibling? Is the sibling going to accuse you of some wrongful conduct and how can you try to guard against those accusations?
Recently, in Printz v. Printz, the West Virginia Supreme Court of Appeals dealt with an undue influence accusation where one of the testators’ children was was the long-time law partner of the drafter of the testators’ wills. The beneficiary who allegedly got the short end of the stick alleged circumstantial evidence of undue influence based on:
(1) Changes in the decedents’ wills that benefited her brother more than her;
(2) The drafter of the wills and her brother knew each other for over thirty-five years; and
(3) Her brother and the drafter of the wills had been partners in the same law firm since 1988.
She also alleged that her brother communicated with the drafter regarding the wills and paid for the drafter’s legal services. While this alleged circumstantial evidence of undue influence wasn’t enough to create a presumption of undue influence, the case and opinion provide us with a few tips.
First, the brother was not in the room when the parents discussed their wills with the drafter and was not present when the wills were executed. This is a good idea where there isn’t a joint representation.
Second, the drafter sent drafts of the wills directly to the testators and didn’t use his law partner as the middleman here. While the testators used their son to communicate non-substantive changes back to the drafter about the wills, this wasn’t enough to raise a presumption of undue influence. The better course, however, would have been to cut the law partner completely out of the chain of communications between the testators and the drafter.
Third, the drafter and personal physician of the testators opined that the testators were of sound mind and possessed the requisite capacity at the time they executed their respective wills. If you think there may be a challenge, it is better to get those opinions contemporaneous with the execution of the wills.
Recognizing that preparing estate documents that benefit your law partners could result in estate litigation down the road should not be reason to decline the representation. A little advanced planning – such as following some of the steps above – can help minimize that risk.