Drafting Attorney as Beneficiary

Shields v. Texas Scottish Rite Hosp., 11 S.W.3d 457 (Tex. App.—Eastland 2000, pet. denied).


Attorney drafted Testator’s will in which Testator left Attorney, a long time personal friend, all of his “personal properties including automobiles, books, personal effects, video tapes, furniture, fixtures and furnishings of every kind and character.” Testator left the remainder of his estate to Charity. Attorney and Charity claimed stocks, bonds, cash, and bank accounts valued at over $2,000,000. The trial court granted Charity’s motion for summary judgment.

The appellate court affirmed. Although the court classified this case as one involving “will construction,” the court focused on the Texas Disciplinary Rules of Professional Conduct which prohibit a lawyer from drafting a will which names the lawyer as a beneficiary unless either (1) the gift is not substantial or (2) the lawyer and the testator are related. Tex. Disciplinary R. Prof’l Conduct 1.08(d). In this case, Attorney and Testator were not related. Rather than determine that the stocks, bonds, cash, and banks accounts were not within the purview of “personal properties,” the court held that the gift fails as a matter of public policy because as a matter of law a gift valued at over $2,000,000 is substantial.

Note: This case is not covered by Probate Code § 58b which provides that a gift to an attorney who drafts a will for a non-relative is void because Testator’s will was executed before September 1, 1997.

Moral: An attorney who drafts a will should not name him- or herself as a beneficiary.