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Publications | July 11, 2017
2 minute read

MSC grants leave to consider whether an attorney can prepare estate planning documents that leave the decedent’s estate to the attorney

When an attorney prepares a will, and he or she is also a beneficiary of the estate, does the presumption of undue influence set forth in In re Powers Estate sufficiently protect the testator while still honoring their wishes?  The Michigan Supreme Court has granted leave to consider this question in In re Mardigian Estate, No. 152655.

In 2011, Robert Mardigian executed a trust and will, both prepared by Mark Papazian, who was an attorney and lifelong friend of Mardigian.  Both the will and the trust left a bulk of Mardigian’s estate to Papazian and his children.  In 2012, Mardigian passed away and Papazian sought to introduce the documents into probate court. Mardigian’s family argued that these documents were “against public policy” as evidenced by Michigan Rules of Professional Conduct (“MRPC”) 1.8(c), which states that a lawyer should not prepare an instrument that gives the lawyer, or anyone related to the lawyer, a gift.  The Court of Appeals relied on In re Powers Estate to find that when an attorney drafts a will and the will names the attorney as a beneficiary, it is not necessarily invalid.  Rather, in those circumstances, it is a question of undue influence.  The court found that because Papazian was Mardigian’s fiduciary, drafted the documents, and benefited from the transaction, a presumption of undue influence exists.  The court thus remanded the case to the trial court, noting that Papazian has an opportunity to prove that the presumption should be set aside.

In granting the application for leave to appeal, the Supreme Court asked the parties to address:

  1. whether the rebuttable presumption of undue influence set forth in In re Powers Estate sufficiently protects the testator;
  2. whether the Court’s adoption of MRCP 1.8(c) warrants overruling In re Powers Estate; and
  3. if In re Powers Estate is overruled, whether and how a violation of MRCP 1.8(c) should bear on the validity of the gift provided to the testator’s lawyers?