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Ely
Ely, Counselor at Law
Category: Legal
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Experience:  Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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My sister took my 89-year-old mother to an attorney to execute

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My sister took my 89-year-old mother to an attorney to execute a new Last Will and Testament. The attorney was a friend of my sister. I found out too late that the will contained a "whatever I tell myself" clause. Although I had been the first caregiver, when Mom was living near me (my state), my sister became the caregiver later on (in a different state - long story, not relevant here). The clause basically said that "Sis," the beneficiary, could give the executor (also "Sis") an affidavit as to what she had contributed to Mom's care without any further accounting. The will had 4 beneficiaries, including "Sis" and myself, who were to inherit on a percentage basis (as opposed to specific bequests). "Sis" told all concerned that "there's no money left" and that was that ("whatever I tell myself"). The other beneficiaries were effectively completely disinherited. I don't believe that my mother fully understood the CONFLICT OF INTEREST presented by this clause, as she had long promised me that my costs of her caregiving would be covered by my inheritance. The attorney was representing my mother, not my sister, when he prepared my mother's will - was there malpractice or an ethical violation in including a "whatever I tell myself" clause when there were other percentage-based beneficiaries? Would a complaint to the state bar be appropriate? There is a P.S. to this: The bulk of the estate was in a check for mom's apartment that was still in her name when she died. "Sis," as executor, took this check outside of probate & behind the court's back some 5 months after Mom died and 3 months after she had sworn an oath for a Fiduciary bond that did not include this amount. When I managed to get a copy of this check (almost a year later), "Sis" went back to the probate court (with the same attorney that wrote Mom's will) and corrected her "mistake" by swearing a new oath. The court gave her everything anyway, based on the "whatever I tell myself" accounting. I am seeking justice on my mother's behalf and am considering filing a complaint against my sister's attorney friend, but don't want to do so if not a justifiable complaint. Would a complaint be appropriate?
Submitted: 2 years ago.
Category: Legal
Expert:  Ely replied 2 years ago.
Hello and thank you for the opportunity to assist you. There may be a slight delay between your follow ups and my replies as I am typing out my answer. Please remember that this is general information only, not legal advice, and no attorney-client relationship is formed.

I am very sorry for your situation. Please allow me to answer your questions in turn.

The attorney was representing my mother, not my sister, when he prepared my mother's will - was there malpractice or an ethical violation in including a "whatever I tell myself" clause when there were other percentage-based beneficiaries?

Not necessarily. At the time that the attorney was drafting the contract and helping to execute it, he was representing your mother. Simply because he also has represented your sister before this and the sister may hold an interest in the Last Will and Testament does not make it a conflict of interest for him to represent the mother.

Would a complaint to the state bar be appropriate?

You may always file one, but for the reasons above, the Bar is unlikely to pursue any action against him once he explains what happened.

I am seeking justice on my mother's behalf and am considering filing a complaint against my sister's attorney friend, but don't want to do so if not a justifiable complaint. Would a complaint be appropriate?

No. However, you may wish to pursue your sister. Under Virginia Title 64.1, you may have action against fraud committed by her, but even then, you do need an attorney in VA to help you. See here:

http://www.vsb.org/vlrs/

The attorneys are vetted and qualified and the service is free.

While the legal system tries to be inclusive of every possibility, sometimes people have limited avenues to seek relief. Please understand that this is not the expert’s fault. Surely, you prefer that I tell you the truth rather than what you wish to hear. Please keep this in mind when rating my answer. I understand that this may not be easy to hear, and I empathize.

I hope this finds you well. Please click Reply to Expert to keep talking, or rate my answer when we are finished. Kindly rate my answer as one of the top three faces when you are ready – I do not get credit for my time with you if you choose the lower two. I work very hard to formulate an informative answer for you; please reciprocate my good faith. (You may always ask follow ups free after rating.)
Customer: replied 2 years ago.

The above response does not seem to answer my question (question restated below). I don't have a problem with my sister taking my mother to an attorney friend, per se - the question is the insertion of the "whatever I tell myself clause" in an elderly person's will - a clause that could serve to empower the executor beneficiary to disinherit the other beneficiaries (without accountability). It was prima facie (I think that is the term) that my mother wanted others to inherit in addition to the executor beneficiary – the percentages were 1/3, 1/3, 1/6, 1nd 1/6. Was not the duty of the attorney to his client, my mother? Because the “whatever I tell myself” clause was a conflict of interest, was there a breach of his duty his client (my mother)? Should he have prepared a supporting document re the conflict of interest to be sure that my mother fully understood what she was signing?


HERE’S THE CLAUSE (with grammatical error and misspelling noted by “sic”): There errors give rise to the impression that the lawyer did not customarily employ this clause. My impression is that it was written by my sister and inserted at her request.


I have borrowed money from my daughter, XXX XXXX, during my life due to the fact that many of my assets were “tied up” and not easily accessible. If any of these loans remain unpaid at the time of my demise, then these loans shall be paid in full prior to any other distribution contemplated herein. My Executor may rely on a (sic) Affidavit (sic) of my daughter, xxx xxxx, as to the status of any loans contemplated herein and said Executor shall have no liability for the correctness of said Affadavit (sic).

MY QUESTION: Putting all of the background aside, does the insertion of this clause into the will give rise to a complaint against the attorney because his duty was to his client (my elderly mother)? WOULD HE BE ABLE TO EXPLAIN THIS TO THE BAR?

Expert:  Ely replied 2 years ago.
Hello,

Okay, I understand what you are asking. Unfortunately, the answer is still no.

Was not the duty of the attorney to his client, my mother? Because the “whatever I tell myself” clause was a conflict of interest, was there a breach of his duty his client (my mother)? Should he have prepared a supporting document re the conflict of interest to be sure that my mother fully understood what she was signing?

An attorney is charged with "zealous representation" of their client. The attorney must advise all the positives, negatives, and repercussions of inserting such a clause, but must ultimately do whatever the client wishes. If she wished to insert that into the will, then the attorney did so, after counseling her about what it may mean.

The fact that she was 89 years old does not mean that her cognizance has lessened. If you can show that she did not have cognizance, then perhaps you have a grievance against the attorney for essentially doing what the sister wanted to do, and not the mother. But the rebuttable presumption is that your mother was fully cognizant when she signed that will, and that she was counseled on what it may mean.

I know it is not the answer that you wish to hear. Please do not "shoot the messenger," so to speak.

I hope this finds you well. Please click Reply to Expert to keep talking, or rate my answer when we are finished. Kindly rate my answer as one of the top three faces when you are ready – I do not get credit for my time with you if you choose the lower two. I work very hard to formulate an informative answer for you; please reciprocate my good faith. (You may always ask follow ups free after rating.)
Customer: replied 2 years ago.
You say: " If you can show that she did not have cognizance, then perhaps you have a grievance against the attorney for essentially doing what the sister wanted to do, and not the mother." If Mom's annuity, of which I was the direct beneficiary, was cashed in without Mom's signature (e.g. my sister using her power of atty.) in the same timeframe the new will was signed by Mom, would this give rise to questions re her cognizance and support a complaint against the attorney?
Expert:  Ely replied 2 years ago.
Hello and thank you for your follow up.

If Mom's annuity, of which I was the direct beneficiary, was cashed in without Mom's signature (e.g. my sister using her power of atty.) in the same timeframe the new will was signed by Mom, would this give rise to questions re her cognizance and support a complaint against the attorney?

If the power of attorney only came into play when your mother became non-cognizant (check its wording), and your sister used it before the will was signed, then this may raise an argument that if your sister had exercised the power of attorney, then your mother was then non-cognizant, so then how could she sign the will later? Or, if your mother was cognizant, then how could your sister use said power of attorney to cash the annuity? So this does bring about questions.

However, if the power of attorney allowed her to act whenever, regardless of your mother's cognizance, then this in itself does not give rise to any wrongdoing allegations.

I hope this finds you well. Please click Reply to Expert to keep talking, or rate my answer when we are finished. Kindly rate my answer as one of the top three faces when you are ready – I do not get credit for my time with you if you choose the lower two. I work very hard to formulate an informative answer for you; please reciprocate my good faith. (You may always ask follow ups free after rating.)
Ely, Counselor at Law
Category: Legal
Satisfied Customers: 89094
Experience: Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
Ely and 2 other Legal Specialists are ready to help you
Customer: replied 2 years ago.
I am seeking a little more information. Your earlier answer was 3-part & the response below was in part 1. Would anything in our further communication have changed this comment that you included in part 1 of your answer as to "...you may have action against fraud committed by her"? Based on specific comments my mother made to me while she was still alive, I honestly believe that there was fraud, but given your answer in its totality, I am not clear as to how there might possibly be an action for fraud (against my sister).

Q: I am seeking justice on my mother's behalf and am considering filing a complaint against my sister's attorney friend, but don't want to do so if not a justifiable complaint. Would a complaint be appropriate?


A: No. However, you may wish to pursue your sister. Under Virginia Title 64.1, you may have action against fraud committed by her, but even then, you do need an attorney in VA to help you.
Expert:  Ely replied 2 years ago.
I am sorry, can you please rephrase/simply your follow up in any way? Simply tell me what you wish to do here.
Customer: replied 2 years ago.

I guess what I am asking in the follow-up question is simply whether your previous response, that "...you may have action for fraud," still stands - given the further information/clarification that was shared. While I am not in a position to pursue such an action, I have a need to know. Does this help?

Expert:  Ely replied 2 years ago.
Thank you.

I still believe that the attorney will likely not be held liable here, since he simply did whatever was asked of him/her. I am sorry.
Customer: replied 2 years ago.
Your previous answer referenced the executor/beneficiary (sister), not the attorney & my most recent question was regarding the sister, rather than the attorney. You had said:
"...you may wish to pursue your sister. Under Virginia Title 64.1, you may have action against fraud committed by her, but even then, you do need an attorney in VA to help you."
At this point, I wish to withdraw the question.
Expert:  Ely replied 2 years ago.
Okay, my apologies. We covered a lot of ground here and if we got a little entangled, please forgive me.

If you need anything else, please let me know.
Customer: replied 2 years ago.
Thanks!

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Ely
Ely
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Private practice with focus on family, criminal, PI, consumer protection, and business consultation.