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Who can be the recipient of a will?

The seeds for probate litigation are sometimes planted with the drafting of wills. The Michigan supreme court recently ruled on the validity of a will and trust prepared by the attorney who was also the recipient of most of his client's estate.

The testator executed an amended trust prepared by his attorney in Aug. 2010. After the testator died in Jan. 2012, his attorney filed an action in the Charlevoix County Probate Court to introduce the amended will and trust.

The testator's girlfriend and relatives challenged the estate documents. They argued that the attorney violated the professional conduct rules governing Michigan attorneys, which prohibit lawyers from preparing documents that give themselves or their family a substantial gift. The probate court judge ruled in favor of the girlfriend.

The lawyer filed an appeal with the Michigan Court of Appeals and claimed that the state does not have an outright ban on estate gifts like the ones contained in the amended will and trust documents. He said that the professional conduct rules are intended to discipline attorneys but are not meant to invalidate estate documents.

The Appeals Court reversed the probate court's decision. The case was remanded to the probate judge to determine whether the attorney can overcome the presumption of undue influence regarding his relationship with his client.

Because the supreme court deadlocked in a 3-to-3 decision last month, the Appeals Court decision was upheld. The justices who agreed with the Appeals Court said that the lawyer's relationship with his client carried a presumption of undue influence. However, it is still important to determine the intent of the person who makes the gift through a will or trust.

The justices calling for reversal of the decision discussed the current rule where an attorney must show that there was no undue influence. They said this gives the lawyer an unfair evidentiary advantage and leaves clients vulnerable, rewards dishonest attorneys, encourages expensive litigation and does not recognize advances in ethics and probate law.

An experienced attorney who acts in their client's best interest can help with estate planning that meets the person's goals. Estate lawyers can also help challenge questionable documents.

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