Re: My Dad Wants Me to Draft His Will, Disinheriting My Sist

More | Report Post

On 5/20/08, Carol wrote:
> On 5/20/08, Carol wrote:
>> On 5/20/08, Alex wrote:
>>> On 4/10/08, Jamie wrote:
>>>> My father has a will dividing his estate equally between
>>>> my sister and me. He's now come to me and asked me to
>>>> draft a will for him, excluding my sister and making me
>>>> his sole beneficiary (he and my sister have never really
>>>> gotten along and have recently had a major falling out).
>>>> Obviously, I'm concerned about how this proposed new will
>>>> would stand up to challenge.
>>>>
>>>> I've suggested he go to another attorney to draw the new
>>>> will, but he'd prefer I do it, and save him the $400.
>>>>
>>>> Any suggestion as to how I could make the newly drafted
>>>> will stand up if it were challenged in court?
>>>>
>>>> My initial thoughts have been to videotape the execution
>>>> of the will, having him speak into the camera and affirm
>>>> that I wanted him to seek outside counsel, have him read
>>>> and ratify the relevant articles, have him sign an
>>>> affidavit stating this was his choice alone, have him
>>>> handwrite a statement...
>>>>
>>>> Any other suggestions would be very appreciated.
>>>>
>>>>
>>>
>>> That's a terrible idea. Let's leave aside the family
>>> dynamics for a moment (why you'd be okay writing a will
>>> disinheriting your sibling to your benefit, or why you might
>>> not be okay telling your dad no) and think for a second
>>> about the legal and professional implications. Your
>>> proposals at the end might protect the will from challenge,
>>> but what about the possibilities of a disciplinary action
>>> against you, instituted by your sister? Whether or not
>>> you're actually doing anything that violates the rules of
>>> professional responsibility in your state, do you really
>>> want to invite that sort of challenge?
>>>
>>> Wills that disinherit family members are ripe for challenge,
>>> and thus should only be drafted by experienced attorneys who
>>> are NOT beneficiaries of the will. You would be well within
>>> your rights to advise your dad that if he wants something
>>> beyond a simple will, he should expect to have to pay for
>>> it. Or, depending on the law in your state, tell him to
>>> write it out by hand if he really doesn't want to pay for
>>> it.
>> I strongly concur! In any state that I am aware of the attorney
>> cannot have a personal interest in any will that they draft.
>> You would not only have a will contest but disciplinary action.
>> If he doesn't want to spend the money perhaps you should pay it
>> for him. I'd be highly suspicious of his motivation if he
>> insists you are the only one who can do this.
> In fact, on thinking on this for a few more moments, I find it
> hard to believe that anyone who has been through law school would
> even consider doing what you've proposed. You're pulling our leg,
> right? Or is it a homework assignment?
Rule 1.8(c) of the Model Rules of Professional Conduct provides: "A
lawyer shall not solicit any substantial gift from a client,
including a testamentary gift, or prepare on behalf of a client an
instrument giving the lawyer or a person related to the lawyer any
substantial gift unless the lawyer or other recipient of the gift is
related to the client. For purposes of this paragraph, related
persons include a spouse, child, grandchild, parent, grandparent or
other relative or individual with whom the lawyer or the client
maintains a close, familial relationship." Seemingly, a lawyer may
prepare the will of a close relative without violating any ethical
rules or canons.

Have your father bequeath a nominal gift to your sibling in the new
will to avoid potential conflicts. The nominal gift will dispel any
assertion that your sibling may be a pretermitted child.

As long as your father has testamentary capacity at the execution of
the will and the appropriate formalities are followed, a court
should not find for anyone contesting it. Incidentally, anyone
contesting the will must overcome a presumption that the terms of
the will are the testator's final wishes.

Model Rules of Professional Conduct