Drafting Attorney as Beneficiary

Olson v. Estate of Watson, 52 S.W.3d 865 (Tex. App.—El Paso 2001, no pet.).


Attorney drafted Client’s will leaving Client’s entire estate to Attorney and Attorney’s Wife to the exclusion of Client’s only child, Son. If both Attorney and Attorney’s Wife predeceased Client, Client’s property would pass to Attorney’s descendants. Attorney, Wife, and Client also entered into an agreement in which Attorney and Wife would move into Client’s house immediately, make improvements, and pay taxes in exchange for a fee simple interest in the house upon Client’s death. Client could also live in the home with Attorney and his Wife for the rest of Client’s life. However, Client died before returning to the house. The trial court granted Son’s motion for a summary judgment and held that the gift was void as a matter of public policy because it gave Attorney and his family a “substantial gift” in violation of Tex. Disciplinary R. Prof’l Conduct 1.08(b). Wife appealed (Attorney had already died after being suspended from the practice of law).

The appellate court affirmed. The court rejected Wife’s argument that there was no attorney-client relationship between Attorney and Client. Preparation of a will is the practice of law and thus an attorney cannot prepare a will as a “friend” rather than as an “attorney” and thus escape the normal professional responsibility duties.

The court also rejected Wife’s claim that the gift under the will was consideration for the agreement regarding the house and thus not a “gift” within the purview of the prohibition against self-interest gifts. The court determined that the will was not contractual because the nowhere in Client’s will did Client state that a contract existed as required by Prob. Code § 59A. Accordingly, the will contained a gift to Attorney and Wife. The court then explained that the testamentary gift of Client’s entire estate was undoubtedly a “substantial” gift; it was not a mere holiday gift or token of appreciation.

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 Client’s will was executed before September 1, 1997.

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