Can a lawyer write himself into a loved one’s will? That is the question being asked in Michigan by the heirs of Bobby Mardigan, the Michigan State Bar and the state’s Attorney Grievance Commission.
At the center of the controversy is attorney Mark Papazian. Heirs of the late Mr. Mardigan say Papazian acted unethically when he drafted Mardigan’s will and made himself the prime beneficiary. Papazian says he did nothing wrong and was simply carrying out his friend’s wishes before he died.
Mardigan died in 2012. Before he passed, he asked his friend Mark Papazian to handle some estate planning chores for him. That included a trust drafted in 2010 and a subsequent will in 2011.
Mardigan’s family wasn’t pleased when they learned that the estate documents left the bulk of the estate to Papazian and Papazian’s sons. Mardigan’s brother and nieces and nephews challenged the will.
Michigan, like many states, has a law that prohibits lawyers from drafting estate documents if they or a family member are a substantial beneficiary.
Michigan’s bar rule says, “A lawyer shall not prepare an instrument giving the lawyer or a person related to the lawyer as parent, child, sibling, or spouse any substantial gift from a client, including a testamentary gift, except where the client is related to the donee.” [Michigan Rules of Professional Conduct 1.8(c)]
Michigan’s bar rule is like that of most states.
The probate court invalidated the will and trust. In most states, if a person dies without a will or an invalid will, the courts look to state law to determine who gets what. In most states spouses and children (if any) receive everything if there is no will.
If there is no spouse or kids, the law looks to siblings, grandchildren, nieces and nephews, and more distant relatives. (Mardigan was divorced and childless at the time of his death.) In this case, by invalidating the will, the estate was awarded to Mardigan’s brother and his children.
The estate in this case was certainly substantial. The Detroit Free Press says it was worth $17 million. That probably explains why Papazian appealed the probate court’s decision. On appeal a judge panel split on what to do. Two of the three judges decided that not honoring the will potentially meant that the late Bobby Mardigan’s wishes were not being followed.
According to them, Papazian’s conduct may have been unethical but that did not automatically make the will invalid.
They said while violating the attorney conduct rule was certainly evidence that should be considered, that evidence didn’t mean that the will should automatically be ignored. The court said, “It is presumed he [Papazian] exerted undue influence in securing the devices at issue.” They also said, however, that he was entitled to a full hearing “to attempt to prove ... the devices represent the unfettered and uninfluenced intent of decedent.”
Not satisfied with the appeals court decision, the heirs went to the Michigan Supreme Court and again demanded the will be thrown out. They argued that any will that makes the attorney who drafted the document also the beneficiary should automatically be void.
The Supreme Court held a hearing in January of 2017 and is expected to hold another later this Fall. The court must decide how to balance the last wishes of a person while at the same time protecting the public from overreaching lawyers.
Will contests are becoming increasingly common but cases in which a lawyer takes advantage of dying or incapacitated person are thankfully less common. Unfortunately, they do happen. Most cases against lawyers and law firms involve claims where the lawyer looted and estate or stole money from a trust account. Cases where lawyers write themselves into a will are much less common.
This case is unique in that the lawyer and decedent (Bobby Mardigan) were apparently friends.
Heirs Also File Bar Complaint
In addition to the will challenge, the heirs also filed a bar complaint against Papazian. It is certainly possible that he could win the will contest and be allowed to keep the money yet still be disbarred for violating attorney conduct rules.
We caution that filing a bar complaint in most states won’t help you get back any money. The attorney grievance process in most states is useful for litigating fee disputes and punishing lawyers that engage in misconduct. It is not a substitute for filing a lawsuit and seeking damages.
The Michigan Supreme Court is proceeding cautiously. They have invited the State Bar Association and the Grievance Commission to also be heard.
Lawyers that Take Advantage of Clients
Lawyers operate under very strict ethical restrictions. The rule prohibiting lawyers from making themselves beneficiaries of a will is one example.
We often get asked, “Can I sue my lawyer?” or “How can I challenge a will?” If a loved one changed his or her will and suddenly all the money is going to the lawyer, you probably have a case. Much depends on the attorney rules of professional conduct in each state.
The case may also turn on the relationship between the lawyer and his or her client. Were they lifelong friends? Is there evidence that the person signing the will was incapacitated or no longer lucid?
Remember, that most will contests don’t involve claims that the lawyer illegally made himself the beneficiary of a loved one’s will. Often the one becoming beneficiary is a caregiver or even a family member. (Will contests can be very emotional when they involve family members.)
Whatever type will contest, remember that the time to file a claim is often very short. In some states, you have just a few months!
Need a law firm with expertise in will contests and other elder law? We hope you will consider our firm. We are usually able to offer flexible payment or contingent fee arrangements (no payment unless we win). That assures that you have exceptional representation without worrying about paying legal bills during the case.
For more information, call us at 833.201.1555 or use our online contact form. All inquiries are kept strictly confidential. See also our will contest page.