A couple of entries from the Wills, Trusts & Estates Prof Blog

A judge cannot exercise a power of appointment

The testatrix’s will gave to those who cared for her at the end of her life a “fair contribution” of cash assets remaining in her estate as determined by the judge having jurisdiction of the administration of the estate. The provision reads:

I fully recognize that my well being over the last few years has been accomplished through the efforts of caretakers who have provided around the clock attention to my creature comforts and companionship with one major contributor to this purpose, namely, MARTHA SHOWS, who has gone far beyond the call of duty in providing for my comfort and welfare, therefore, I hereby give devise and bequeath and direct that the Judge of competent jurisdiction over the administration of my Estate make a fair contribution of cash assets that may be remaining from my Estate to the said caretakers then providing said services to me, and, in particular the said MARTHA SHOWS who has always shown an unselfish loyalty to my personal welfare and well-being.

The lower court struck the provision for uncertainty.

In In re McSwain, 946 So. 2d 417 (Miss. Ct. App. 2006), the court reversed holding that the provision created a special power of appointment. However, the court also held that a judge could not exercise the power because it required an “arbitrary” decision and remanded for a finding of whether the testatrix reposed a special confidence in the office of chancellor in the absence of which the power could be delegated to a person able to exercise it.

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Creating wills and powers of attorney deemed to be the unauthorized practice of law

The testarix asked her friend, an insurance agent, to help draft her will. The friend filled in the blanks in a computer generated generic will which the testatrix executed. The friend was named executor.

In Franklin v. Chavis, 640 S.E.2d 873 (S.C. 2007) , the court found that the testatrix was not involved in drafting the document and did not review it. The court held that the friend had acted as more than a scrivener and had engaged in the unauthorized practice of law. The friend also drafted a power of attorney for the testatrix which did not involve filling in blanks in a form and this too was the unauthorized practice of law. The court also determined that the friend could not receive compensation for acting as the executor.

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We kind of have some experience with the latter case here in Ohio. In Cleveland Bar Assn. v. Sharp Estate Serv., Inc., 2005-Ohio-6267,

In a decision announced December 14, 2005 the Supreme Court of Ohio permanently enjoined a Cleveland-based “trust mill” operation and its owners and the Nevada company whose legal documents they sold to consumers from any future marketing or sale of living trusts or similar instruments in Ohio . Finding that the respondents had engaged in more than 400 acts of unauthorized practice of law (UPL) after prior Supreme Court rulings barred their activities, the Court also imposed a civil penalty of $1,027,260 and ordered the respondents to turn over a list of all Ohio residents to whom they have sold trust documents, so those consumers can be advised to confer with an attorney to determine if the trusts they established are valid and appropriate to their needs.

In an opinion written by Justice Paul E. Pfeifer, the Court imposed the above injunction and penalties against Sharp Estate Services, Inc.; Asset Preservation Group, Inc.; Sharp Estate and Insurance Services, Inc.; and principals Jeffrey G. Sharp, Robert Clapacs and Diane C. Sharp. Also named were Henry W. Abts III and The Estate Plan (TEP), a Nevada corporation owned by Abts that is engaged nationwide in the preparation and marketing of living trusts and other estate-planning products.

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