Can I Draft a Will Where I am an Intended Beneficiary?

Can I Draft a Will Where I am an Intended Beneficiary? The answer is you can, but chances are if you do, at some point you will be called upon to defend yourself.

The family of an 88-year-old man who died in November of 2010, is disputing his will which left $1.1 million to the attorney who drafted it. The family alleges that the attorney pressured the deceased into leaving him the majority of his estate. The family claims that when the deceased went under the representation of the attorney, his whole persona changed. He became moody and secretive about his financial affairs and refused to talk with his wife about his will because of Attorney-Client privilege.

While an attorney who acts as executor is entitled to compensation for taking on such a role, this compensation is prescribed by statute. If a client wishes to leave you a substantial bequest, you should have another attorney draft the will to avoid the appearance of impropriety.

Courts disfavor bequests to attorney-draftsmen. New York State Bar Association Opinion #610- 06/20/90 states that in a New York probate proceeding, the Surrogate has the duty of investigating any bequest to the attorney draftsman. The attorney will be required to submit an affidavit explaining the facts and circumstances of the gift and if the Surrogate is not happy with such an explanation, a hearing will be held to determine if there was any undue influence. These hearings are called “Putnam Hearings” because of the leading case on point, In re Will of Putnam. The Court of Appeals has suggested that such bequests be avoided unless there are exceptional circumstances, such as a close familial relationship or a bequest which is very minimal in comparison to other bequests and the size of the estate.

If you have been asked to draft a will where you are intended beneficiary, call the Law Offices of Albert Goodwin at (212) 233-1233 and we would be happy to assist you.