Will Void If Attorney Prepares A Will And Is Beneficiary

Robert Ray

Texas Rule

If an attorney prepares a will can the will name him as a beneficiary? The quick answer is no, it can’t.  Texas has a statute that says a devise or bequest of property in a will to an attorney or to an heir or employee of the attorney who prepares or supervises the preparation of the will is void. EC §254.003.

In a recent case, an attorney prepares a will. He had a woman working in his office that was an independent contractor.  She claimed that she was not an employee of the attorney.  She was a paralegal but she just did occasional work for the attorney.  She also did occasional work for other attorneys who shared office space with the attorney who drafted the will.  The will made her a beneficiary and also appointed her as the executor of the will.

The Will Contest

A sister of the testator contested the provisions of the will leaving part of the estate to the paralegal.  The court agreed with the sister finding that the paralegal met the definition of employee under the statute and ordered the paralegal to return all of the property that she had received to the heirs of the testator.  The court also ordered the paralegal to pay the attorney fees of the sister.

The paralegal appealed claiming that the statute did not apply to her since she was not an employee.  The appeals court disagreed and denied her appeal.  Jones v Krown.

Note:

A 2015 case out of Michigan indicates that Michigan law is different from Texas law. The Michigan case held that a will prepared by an attorney that left the attorney property was not necessarily void. The court held that under Michigan law, if the attorney could plead and prove that he did not unduly influence the testator, the will could be probated. The difference between Michigan and Texas is that a Texas statute declares the will void. There is no need to find that the attorney used undue influence. In Michigan, the rule is in their attorney’s Rules of Professional Conduct which are guidelines for attorneys’ conduct but don’t have the force of law like a statute. The attorney is presumed to have unduly influenced the testator but if the attorney can plead and prove that he did not exert undue influence, the will and the gift can be upheld. Florida has a similar rule, e.g. a gift to the attorney who prepares the will or his employees is not void but only voidable if undue influence can be shown. California too does not make the will void as it is in Texas but holds that it is presumed to be the product of fraud or undue influence.

UPDATES

There are new cases all the time that clarify or change the law on inheritance disputes. Keep up-to-date by subscribing to our blog.

'

Subscribe

Recent Posts

Signing a Will in All the Wrong Places

Signing a Will in All the Wrong Places

Where do you sign a Texas will? In a recent case, 01-20-00073-CV, a Texas will was offered for probate. The trial court did not admit the will to probate because the testator just initialed six pages and did not sign on the seventh page where the document had a space...

How do I claim my inheritance Texas

How do I claim my inheritance Texas

Claiming an inheritance in Texas An inheritance can never compensate for the death of a family member. But inheritance is not about greed; it is about custody and control of your property. Claiming an inheritance in Texas is usually straightforward if you are a named...

Slayer Rule and Insurance in Texas

Many states have a "Slayer Rule." The Slayer Rule is a stature or rule that a person who kills a person from whom they inherit forfeits the inheritance. Texas does not have the Slayer Rule. There are ways to get around the fact that Texas doesn't have a Slayer Rule...

Can a testator make hand written changes to a will

Can A Testator Make Hand Written Changes To A Will?   As a general rule, if a will is not “wholly” in the handwriting of the testator, it must be attested to by two credible witnesses. If a testator attempts to make handwritten changes to a written will, those...

The Author

Robert Ray

Robert Ray handles inheritance disputes of all kinds. He takes cases throughout Texas.
© Copyright 2022 | All Rights Reserved.

Pin It on Pinterest

Share This