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.
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.