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

    Posted by Frankie on 6/24/08

    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

    Posts on this thread, including this one
  • My Dad Wants Me to Draft His Will, Disinheriting My Sister, 4/10/08, by Jamie.
  • Re: My Dad Wants Me to Draft His Will, Disinheriting My Sist, 5/20/08, by Alex.
  • Re: My Dad Wants Me to Draft His Will, Disinheriting My Sist, 5/20/08, by Carol.
  • Re: My Dad Wants Me to Draft His Will, Disinheriting My Sist, 5/20/08, by Carol.
  • Re: My Dad Wants Me to Draft His Will, Disinheriting My Sist, 6/24/08, by Frankie.

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