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A Better Partnership
July 06, 2016

Michigan Supreme Court to Consider Enforceability of Wills Benefiting the Drafting Attorney

The Michigan Supreme Court will hear oral argument on the application in In re Mardigian, No. 152655, to consider whether to overrule In re Powers Estate, 375 Mich 150 (1965).  In re Powers Estate holds that a Michigan court may enforce a will that devises most of the decedent’s estate to the attorney who drafted it, subject only to the presumption that the drafting attorney exercised undue influence over the testator. 
 
In In re Mardigian, the decedent, Robert D. Mardigian, executed an amended trust and will prepared by long-time friend and attorney, Mark S. Papazian, who served as executor of the estate.  The trust and will left much of the estate to Papazian and his children. After Mardigian’s death, his family challenged the trust and will, contending that the devises were void as against public policy and, therefore, unenforceable.  They argued that Papazian’s undue influence over Mardigian, as his friend and attorney, also violated the Michigan Rules of Professional Conduct.  
 
In its ruling on the issue, the Court of Appeals relied on In re Powers Estate, where the Michigan Supreme Court had held that a will, devising the bulk of the estate to a member of the family of the attorney who drafted the will, and naming the attorney as an additional beneficiary, was not necessarily invalid.  In such circumstances, the court should consider whether the attorney exerted undue influence to secure the testamentary gift.  In assessing undue influence, the Powers Court examined: (1) the well-defined, well-recognized test of the testator’s competency to execute the testamentary instrument at the time; and (2) the equally well-defined, well-recognized issue of the exercise of fraud or undue influence in the execution thereof, including any presumption created by the fact that the proponent was the decedent’s attorney.
 
Relying on In re Powers Estate, the Court of Appeals remanded In re Mardigian so that Papazian would have to overcome the presumption of undue influence arising from the attorney-client relationship to receive the devises left to him and his family.  The appellate court also pointed to the statutory scheme provided by the Legislature that suggests that the contestant of a trust or will must establish undue influence in order to invalidate the trust or will, MCL 700.2501. Our previous blog on the Court of Appeals’ decision can be found here.

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