A recent appellate court decision in Michigan means that it is possible for attorneys to be unethical and still profit from the wills they create.
Every state has a basic ethical rule for attorneys: an attorney cannot draft a will for a non-relative that includes a substantial gift for the attorney. The theory behind this rule is that attorneys could manipulate unsophisticated or incompetent clients into leaving the attorney a sizeable inheritance.
Despite this well-known rule, an attorney in Michigan drafted a will for his long-time friend that gave $14 million to the attorney and his children. This was nearly the entire estate. The deceased's family sued to have the will declared invalid. The trial court ruled that since the attorney acted unethically in drafting the will, the will itself was against public policy and invalid.
The attorney appealed and won.
The appellate court decided that the will was not automatically invalid. Instead, since the attorney acted unethically, it created a presumption that he exerted undue influence. If the attorney can prove that he did not exert undue influence, then the will remains valid. The Detroit Free Press reported this story in "Court: Lawyer's $14M inheritance unethical, not invalid."
Ordinarily the person claiming there was undue influence in creating a will has the burden to prove the claim, which is often difficult. It remains to be seen how difficult it will be for the attorney to prove that he did not exert undue influence. This case will be watched closely by those in the estate planning industry as well as legal ethics experts.
Reference: Detroit Free Press (October 9, 2015) "Court: Lawyer's $14M inheritance unethical, not invalid."
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