Wills - Void Gifts

Jones v. Krown, 218 S.W.3d 746 (Tex. App.—Fort Worth 2007, pet. filed).

Attorney drafted a will for Testator which named Paralegal (an independent contractor) as both a beneficiary and as the executrix. After Testator died, his sister filed a motion for a declaratory judgment to set aside the gift to Paralegal under Probate Code § 58b which states that a testamentary gift to “employee of the attorney who prepares or supervises the preparation of the will is void.” Both the trial and appellate courts agreed that Paralegal’s gift was void and that the property passed via intestacy to his sister.

The court was unimpressed with Paralegal’s arguments that § 58b did not apply to her. The court found it irrelevant that Paralegal was not involved with the drafting of Testator’s will and that she was not present when Testator executed the will. In addition, her technical status as an “independent contractor” did not keep her from falling within the purview of the term “employee” as used in the statute. Because § 58b does not define the term, the court relied on the “plain and common meaning” of the word, that is, someone who works for someone else and receives payment for that work. Because Paralegal worked for Attorney and was paid for her work, she qualified as an employee. The court also explained that the application of § 58b to void Paralegal’s gift “is consistent with the Legislature’s intent * * * which was to avoid having an interested person use his position of trust to benefit himself.” Jones at 749.

Moral: An attorney should not draft a will which leaves property to one of his employees unless one of the exceptions in § 58b applies and even then, prudent practice may be to send the testator to a completely disinterested attorney.