Does Your Estate Plan Really Work?
A common misconception is that estate planning is the documents. In reality, the most important part of estate planning is every step in the process before the documents. Your attorney must have a clear understanding of your goals and potential risks involved with your desired plan in order to provide documents that will stand up to any scrutiny that may arise. If the underlying process is flawed, the documents that are the result of that process will be flawed as well.
I don’t have a universal answer for how you can make sure your attorney creates effective documents. There are countless variables in that equation. What I can offer is the story of one client’s experience with an attorney that for the most part “went through the motions” of creating an estate plan but provided very little pro-active legal representation in making sure his client’s goals were carried through in her plan and documents.
This is the story of J. Sinclair Long, an attorney since 1978. Mr. Long is an experienced criminal law attorney with no history of professional disciplinary issues. He is also good friends with a man by the name of Wilbert Harris for over 25 years. Wilbert introduced one of his relatives, Mrs. Lessie Lowery, to Mr. Long during the course of their friendship and the two of them developed a friendly rapport.
Wilbert moved in with Lessie after her husband passed away. He assumed primary caregiver responsibilities and every indication is the two of them had a friendly relationship. One day, Wilbert asked Mr. Long to prepare a will for Lessie which would leave all of her assets to Wilbert. Mr. Long agreed to draft the will for his friend and proceeded to look up a form will and attempted to modify it to comply with local law. He gave the document to Wilbert with instructions for how to have Lessie execute the will and collected a $75.00 fee. At this point in the story you may already hear echoes of “you get what you pay for.”
Lessie signed the will as instructed. Unfortunately she passed away in little more than a year after she executed the will. After Lessie passed away, several of her nieces and nephews made themselves known and contested the will. The will contest ended in a negotiated settlement but Mr. Long’s troubles were just beginning. As a side note, the settlement resulted in 40% of the estate going to Wilbert, the intended beneficiary of the decedent. The majority of the estate went to unintended beneficiaries.
Mr. Long ended up before his state’s ethics board to respond to his representation involving Lessie. The Board significantly noted Mr. Long’s handling and preparation of the will. While Mr. Long confirmed Lessie’s distribution plan, he completely failed to learn of her other living relatives. He made no investigation into Lessie’s finances or discussed her intentions in any more than a perfunctory manner. In addition, Mr. Long took “no special precautions in consideration of Lessie’s advanced age and medical condition in anticipation of a will contest.” Arguably, Mr. Long delegated his obligatory due diligence to a form and failed to display any advocacy in designing and implementing Lessie’s estate planning goals.
The Board ordered a thirty day suspension for Mr. Long. On appeal the decision was stayed in favor of probation. At the end of the day the attorneys got paid and the client’s goals were not achieved.
DCCA Opinion No. 04-BG-883: In re J. S. Long
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