The purpose of this article is to explore the evolution of the law's treatment of the practice by attorneys of drafting wills for clients in which the attorneys are named as beneficiaries. The article begins with an exploration of the early probate basis for addressing the practice—specifically, a presumption of undue influence which could only be rebutted by clear and convincing evidence. The article proceeds with an overview of the state of the law prior to the adoption of the Model Code. The transition in the case law from probate concerns to ethical ones is then examined, leading up to the Model Code's treatment of the problem. Next, the applicable new Model Rule is analyzed, with particular emphasis on its limitations. Finally, a new rule is proposed which, if adopted, would solve the problem entirely.
Joseph W. deFuria Jr.,
Testamentary Gifts from Client to the Attorney-Draftsman: From Probate Presumption to Ethical Prohibition,
66 Neb. L. Rev.
Available at: http://digitalcommons.unl.edu/nlr/vol66/iss4/4