Often times, attorneys may be bombarded by family members or relatives with requests to provide free legal services which a family member or relative may request. One typical request might be that a family member may request if the attorney could draft a Will for them. While this may seem like a simple and good idea, it is one that could have disastrous consequences which could lead to future Estate Litigation. Any time an attorney drafts a Will for a family member, especially one in which there is a close relationship or even more importantly one in which the attorney himself may benefit by the Will, a presumption may arise as to the invalidity of the Will. In general, if an attorney drafts a Will in which he or she is a beneficiary, there arises a presumption of undue influence which then must be rebutted by the beneficiaries of the Will by clear and convincing evidence in the context of a challenge to the Will. The clear and convincing evidence standard is a difficult standard to satisfy and may ultimately lead to the invalidation of the Will, regardless of the intentions of the decedent.
As such, it is suggested that an attorney refrain from doing a favor for a family member or relative by drafting a Will for them, especially one in which the attorney might receive a bequest. Instead, the best thing to do is to refer this party to unbiased counsel to draft the Will. Clearly, the last thing that the decedent would want would be a post-mortem Will Contest based upon this sort of scenario. The small cost that it would take to hire a unbiased attorney to perform this process is certainly worth the trouble and expense.
