S.B. No. 1176
BEQUESTS TO ATTORNEY DRAFTING WILL ARE VOID
Governor Bush signed SB 1176 on June 19, 1997. SB 1176 becomes effective September 1, 1997.
SB 1176 adds Section 58b (that's right, it's a lower case "b" -- we'll see how West Publishing deals with that) to the Probate Code, which reads as follows:
|Sec. 58b. DEVISES AND BEQUESTS THAT ARE VOID. (a) A devise or
bequest of property in a will to an attorney who prepares or supervises the
preparation of the will or a devise or bequest of property in a will to an
heir or employee of the attorney who prepares or supervises the
preparation of the will is void.
(b) This section does not apply to a bequest made to a person who is related within the second degree by consanguinity or affinity to the testator, nor to a bona fide purchaser for value from a devisee in a will.
The bill applies only to wills executed on or after September 1, 1997.
Prior to the enactment of SB 1176, nothing in the Probate Code made testamentary gifts to attorneys void. However, the issue was addressed in Rule 1.08(b) of the Texas Disciplinary Rules of Professional Conduct:
|(b) A lawyer shall not prepare an instrument giving the lawyer or a person related to the lawyer as a parent, child, sibling, or spouse any substantial gift from a client, including a testamentary gift, except where the client is related to the donee.
Based upon a quick review of this ethical rule and new Section 58b of the Probate Code, there appear to be these key distinctions between the two:
|Tex. Prob. Code Ann. § 58b
|Applies to any instrument bestowing a substantial gift, not just gifts under a will.
|Applies only to "a devise or bequest of property in a will."
|Applies to gifts to the parent, child, sibling, or spouse of the lawyer who prepares the instrument.
|Applies to gifts to an "heir" of the attorney who prepares or supervises the preparation of the will."
|Makes exception for gifts where the client is related to the donee.
|Makes exception for gifts where the client is related "within the second degree by consanguinity or affinity to the testator."
|Makes no mention of the rights of bona fide purchasers of the donee's interest in a gift.
|Makes exception for a bona fide purchaser for value from a devisee in a will.
|Lawyers who are members of or associated with the lawyer's firm also are subject to Rule 1.08(b). See Rule 1.08(i).
|Statute applies not only to the attorney who prepares the will, but also to an attorney "who supervises the preparation of the will" and to employees (including, presumably, nonattorney employees, such as secretaries, receptionists, legal assistants, domestic servants, etc.) of the attorney who prepares the will or of any attorney who supervises the preparation of the will.
Here are some potential problems which may arise from Section 58b and its applicability:
Every attorney -- not just estate planning specialists -- needs to know that Section 58b is out there, and we must all be more careful to assure that our actions don't cause Section 58b to come into play.
Copyright © 1997 by Glenn M. Karisch. This page was last revised on September 15, 1997.