Friends Help Draft Will, But Do Not Benefit From Bequest

JULY 27, 1998 VOLUME 6, NUMBER 4

Diana Marks was a professor at Whitworth College in Washington state, and a devout Christian. Ms. Marks, who had never married and had no children, was particularly close to Eldon and Judith Blanford, who (with her help) organized and operated “Personal Freedom in Christ Ministries,” a religious organization.

In 1994, Ms. Marks was diagnosed with cancer. During her illness, her friends the Blanfords took her into their home and helped care for her.

The evening before a scheduled surgery, Ms. Marks indicated that she wanted to make a new will. Ms. Blanford contacted her own attorney the next morning, but he told her that he would be unable to see Ms. Marks for several days. He suggested that Ms. Marks could make a temporary will by filling out forms she could purchase at a stationery store.

With Ms. Marks’ permission, Ms. Blanford went to a local Office Depot store and bought a pre-printed will kit. After reading the kit’s instructions, Ms. Marks began to talk about how she wanted to distribute her estate; Ms. Blanford took notes during these conversations.

The day after Ms. Marks’ surgery, Ms. Blanford typed the will kit’s language into her home computer. She printed out a first draft of the will and gave it to Ms. Marks to review. Ms. Marks corrected several typographical errors, but made no substantive changes to the draft.

Over the next several days, Ms. Marks reviewed at least two more drafts of the will, and discussed the provisions at length with her sister (who had arrived from Texas). She expressed concern that family members would not like the will’s provisions, but was consistent in her estate plan. Ms. Marks signed the will six days after her surgery and died two weeks later.

The will left Ms. Marks’ home to her sister, and substantial bequests to no only her sister but a brother, a nephew and a developmentally disabled niece. She also left property to her personal secretary, a church friend and the church she regularly attended (and which she had served as a minister on an interim basis). She also left money to several other religious organizations, including $100,000 to the organization run by the Blanfords. She named Mr. Blanford as personal representative of her estate.

As Ms. Marks feared, at least one family member disapproved. Her brother Hartwell Marks contested the validity of the will, alleging that the Blanfords had unduly influenced her. He also argued that the Blanfords had engaged in the unauthorized practice of law in preparing the will for Ms. Marks’ signature.

After hearing from 19 witnesses during a four-day trial, a judge found that the Blanfords had not unduly influenced Ms. Marks. In fact, the judge ruled, the evidence was that Ms. Marks was very clear and strong-willed in her wishes.

The court also found, however, that the Blanfords had practiced law without a license. Mr. Blanford was removed as personal representative, and the bequests to the Blanfords and their religious foundation were voided. Because the judge found that the practice of law had been inadvertent, however, he did allow Mr. Blanford to collect his attorney’s fees from the estate, despite having been removed as personal representative.

The Washington Court of Appeals agreed. “The selection and completion of preprinted form legal documents is also deemed the ‘practice of law,'” said the court. Because a lawyer would not be permitted to write herself (or an organization she controlled) into a will, the Blanfords would be held to the same standard. Estate of Marks, March 31, 1998.

The result in Arizona might not be the same. Arizona has no statute prohibiting the unauthorized practice of law; that might mean that the Blanfords could still inherit. Most likely, though, the will would be upheld in Arizona as well.

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