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Say What? | Estate and Trust Drafting Attorney Mishaps

Say What? | Estate and Trust Drafting Attorney MishapsMy law firm, Hackard Law, litigates estate and trust disputes in most of California's major urban areas. A deposition of the drafting attorney is part and parcel of these disputes. I've never heard a drafting attorney admit that he prepared an unduly influenced or incapacitated client's will or trust. Never. Is this any surprise? How often would a mechanic disclose that he destroyed your car's engine? A dentist divulge that he filled the wrong tooth? A barber concede that intentionally cut your hair to look like Moe, the leader of the Three Stooges?

Well, you get the idea. Given the number of drafting attorney depositions that we take, we're often thinking but don't express: "What were you thinking?" or "Say Whaaat?" That said, there are many variations to drafting mishaps - some not involving attorneys at all. So, applying artistic license, I'll share a few experiences.

Document Preparation Panderers

Document preparers, unfortunately, can at times cater to and exploit the weaknesses of elders. They advertise that they will prepare a living trust to provide peace of mind to elders and avoid the problems of probate. A flat fee of $400 to $900 or more is often charged. And so, what does an elder get for their fee? A document service providing documents without the direct supervision of a California licensed attorney. The document preparer often represents that the completed document is legally sufficient to accomplish a desired legal outcome.

I've seen plenty of problems associated with such preparers. They are not lawyers and their conduct often constitutes the unlawful practice of law. An elder's desire for an inexpensive estate plan may turn out to be quite expensive for his heirs. California has a specific statutory scheme that allows Legal Document Assistants (LDAs) to assist in the completion of legal documents. Such assistants must provide a disclaimer to their customer that states that they are prohibited from providing legal advice or opinion.

Insurance Sales Agents

Insurance sales agents, unlicensed to practice law, often target and solicit elder Californians to purchase documents to form a will, living trust and other estate planning documents. They "cold call" elders or use mailers to reach prospective clients and try to set up meetings at the elder's home. Such agents may charge $3000 or more to the elder for these "one size fits all" packages. An attorney is often associated in by the insurance agent to superficially legitimize sales of these packages. The attorneys are paid from the amount paid to the sales agent - maybe $400 to $500.

Attorneys who participate in these sales violate professional standards of competence and ethics, as well as violating the prohibition against aiding others in the unauthorized practice of law. Clients generally do not meet with the lawyer, and the standard set of documents provided by the insurance sales agent is used by the unquestioning lawyer. We've deposed a lawyer who testified that he prepares about 50 estate plans per year for clients provided to him by an agent who cold calls. The particular decedent in the matter that we addressed certainly didn't benefit by the "one size fits all" approach. The matter went to litigation and was resolved prior to trial.

Attorney Videographers

We've handled a few cases where the drafting attorney thought it would be a good idea to videotape his estate planning client. There are some cases that might benefit from this - just not the cases that we civilly prosecuted.

One elder, short on memory and long in years, was videotaped by his lawyer asking questions that were supposed to show that he had capacity. A neuropsychologist who viewed the tape wanted to use it as an example for his students - providing some comedy with a learning experience on what not to do.

Questions from the lawyer to the client included an opening salvo of "Who am I?" The elder looked a little baffled and responded, "you're my friend." The lawyer didn't quite like that answer, so he posed a more comfortable closed-end question: "I'm your lawyer, aren't I?" Well, at least the lawyer knew who he was - the elder not so much - but then the elder agreed - looking somewhat relieved that he could say yes to a question. The video had other moments worthy of a TV sitcom.

This, of course, is not the only video that we've seen. Quite a number of attorney-inspired videos have been part of a contesting party's evidence that the elder was unduly influenced or lacked capacity to make a will or a trust.

Don't Speak the Language? No Worries

The State Bar of California publishes a terrific brochure titled "Do I Need A Living Trust?" The brochure is user friendly and explains and defines a living trust, identifies its use, explains how it helps if you become incapacitated, identifies options for the choice of a trustee, identifies assets that should or shouldn't be in the trust, identifies disadvantages, explains costs and warns about "promoters" of financial and estate planning services."

Given this background, it is amazing that we've litigated as many cases as we have over lawyers who didn't, couldn't or wouldn't explain the nature of a living trust to their client. Among the notables:

  • Providing a living trust to someone who was illiterate and couldn't begin to read or understand it;
  • Having a blind person sign a living trust whose terms were provided by a third party and not read to him;
  • Drafting complex living trusts for people who didn't speak English and having an inhouse person who wasn't fluent in the elder's native tongue summarize the trust terms in cursory form;
  • And a drafting attorney claiming memory failure during a deposition about everything related to the preparation, review and execution of the living trust.

The drafting attorney did continually volunteer that "I don't recall exactly, but I can speculate." That's not all that helpful - attorneys are trained to be exact in the English language, and speculate means in part, "to review something mentally or orally in an idle or casual manner and usually with an element of doubt or without sufficient evidence to reach a sound or meaningful conclusion."

So, now imagine that you are a juror and hearing the evidence from a drafting attorney as to how he came about preparing, explaining, and observing the execution of a complex draft document. The attorney starts off expressing that he is in doubt or without sufficient evidence to reach a meaningful conclusion. So, does the judge step in and say - "please go on, Mr. Attorney, the court and the jury would like you to speculate - we don't need the truth here - we're just putting on stories - whether real or not." I don't think that a judge would say that, or a jury would appreciate it. And, I think that an attorney should know better - but some don't.

So, we started off with a few questions - "What were you thinking?" and "Say Whaaat?" I hope that you can appreciate that we lawyers who litigate estate and trust litigation matters don't always put a lot of stock in an attorney's claims that his client had capacity or was not subject to undue influence. That may be so, but there is usually a lot more evidence - doctor's reports, diagnoses, testimony from family members and other witnesses, and documentary evidence that may call into question the attorney's conclusion.

At Hackard Law, we take substantial estate and trust cases where we think that we can make a significant difference and there is a wrongdoer who can be made financially accountable for this wrongdoing. We regularly civilly prosecute cases in California's major urban areas, including Los Angeles, Alameda, San Mateo, Contra Costa and Sacramento Counties. If you'd like us to hear your story call us at 916 313-3030.

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