CALIFORNIA PROBATE CENTER

The Authority for Probate Litigation and Estate Planning in California

Estate Planning and Probate Attorney Drafts Will That Named Himself Beneficiary of $7 Million Estate

Posted on | August 29, 2008 | No Comments

Jack Carey, a prominent attorney in Florida, drafted a will for a 90 year old widower suffering from “senile dementia, cataracts, hearing loss, and depression” among other ailments, in which he named himself and his assistant the prime beneficiaries. The superior court held that the gift was void because of Carey’s undue influence over the woman.

In California, a donative provision for an attorney is void if that lawyer also drafted the will. California Probate Code §21350. An exception to this rule is if the lawyer is related by blood, marriage, or is a cohabitant with the transferor. California Probate Code §21351(a). Otherwise, the instrument must be reviewed by an independent attorney who counsels the client about the nature and consequences of the intended transfer, attempts to determine if the intended consequence is the result of undue influence, and signs an independent certificate of review. California Probate Code §21351(b).

Jack Carey was not related by blood, marriage or cohabitation with the widow, nor did he obtain an independent certificate of review. As highlighted in a recent Wills, Trusts, and Estates Professor post, Jack Carey’s gift to himself would raise a rebuttable presumption of undue influence in some states. If the will was executed by a resident and signed within California, the gift would be void at its inception.

Category: Probate, Probate Litigation, Wills
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