The Michigan Supreme Court has been considering this case for a long time. On June 21, 2018, it came down with its long-awaited decision. Except it was. . . a non-decision. The Court split by a 3-3 vote, resulting in an affirmance. The reason that all seven members did not rule is that Justice Wilder, one of the newer members of the Court, was on the Court of Appeals panel which ruled on the case earlier.
Mark Papazian drafted a will for a friend, Robert Mardigian. The will was remarkable because it left "the bulk of" his estate to Papazian and his children.
Rule 1.8-c of the Michigan Rules of Professional Responsibility prohibits an attorney from preparing a will or other instrument for his client if it gives him or his close family a "substantial" gift. But the Michigan Rules of Professional Responsibility provide a basis for attorney discipline, not for interpretation or application of the instrument.
The issue at all levels was whether (1) the will was automatically invalidated based on the violation of the rule and (2) whether the attorney-client relationship and the friendship between the two gave rise to a presumption of undue influence, requiring Papazian to produce evidence that there was no such undue influence. (Of interest, the presumption does not apply substantively, shifting the burden of proof at the time of the hearing. It applies only to the burden of production of evidence.)
Three members of the court (Markman, Zahra, and Clement) would find that the will was not invalidated, and that the presumption would apply. The other three (McCormack, Viviano, and Bernstein) would create and apply a new "per se" rule automatically invalidating the will.
The position of the Markman group was based on an earlier case, In re Powers Estate, 375 Mich 150 (1965), which had likewise allowed the application of a will in which the attorney's wife was a major beneficiary. The Powers rationale was encapsulated in the following: "the focus of the will contest is to determine the decedent’s intention and not to judge and discipline the attorney’s conduct."
This 3-3 split is very unfortunate. It permits the Court to escape making a definitive decision on this important point, to the detriment of the public's perception of the legal profession. This case will not have any precedential effect, but the 1965 decision in Powers will continue to apply as the controlling rule on this issue.
Tuesday, June 26, 2018
Subscribe to: Posts (Atom)
IRA distributions under SECURE
The 2019 SECURE Act made a major modification to post-mortem distributions of funds from IRAs and qualified retirement accounts to non-spous...
The Lion Cub deed is an elusive creature. It is fleetingly mentioned on the web sites of some Michigan estate planning and real estate attor...
From Bloomberg: The IRS is coming for your Venmo income. The IRS is reported to have imposed a new requirement for Form 1099-K, on which a...
We recently posted our commentary on the use of a so-called “lion cub” deed, noting that two or more people who are granted ownership of re...