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Thursday, April 22, 2010

IS A DEVISE TO AN ATTORNEY-DRAFTSMAN VOID? [FLORIDA]

The Florida Bar Rules provide that "[a] lawyer shall not solicit any substantial gift, or prepare on behalf of a client an instrument giving the lawyer or a person related to the lawyer any substantial gift unless the lawyer or other recipient of the gift is related to the client." Rule 4-1.8(c). This prohibition is nothing new - it dates back to Roman law.

So what happens if a lawyer prepares a Last Will for client that violates this rule and that leaves him or her a substantial gift? A recent Florida case addresses this issue, when gifts were made both to an attorney and his paralegal.

The trial court noted that such an ethics violation does not make the gift void PER SE. However, it will be considered as evidence of undue influence if the Will is challenged. In the subject case, the trial court went on to find undue influence by the attorney and voided gifts of over $7 million to the attorney and his paralegal.

What if the client really wants to make a gift to the attorney, of his or her own volition? The Comments to the above ethics rule suggest that the attorney advise the client to seek advice of independent counsel on the gift. A further recommendation would be to have the other attorney draft the Will.

Carey v. Rocke, 18 So3d 1266 (Fla. 2d DCA 2009)
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