An attorney in a state far from me supposedly advised my 75-year-old father in declining health to leave a very large donation in his revocable living trust. He was alone in that community and passed away seven months after the trust was created. No one in our family knew of this donation and no one saw the trust before he passed away. The attorney was the only witness of the trust and was the notary. This attorney is also a member of the board of the nonprofit foundation that received my father’s bequest. Is this sort of thing common and an acceptable practice for attorneys and nonprofit foundations?
This is an issue that varies by state. I believe that some states say that it is unethical for a lawyer to draft a will or trust for a client to make a gift to a charity when the lawyer is on the board of the recipient. Others say it is a conflict of interest that can be waived by both the donor and the charity upon full disclosure.
Even if it is ethical, many firms will shy away from the practice because it is the classic opportunity for “undue influence” and litigation from relatives who think they should have been remembered (or given more) in the estate plan. If a lawyer is ethically permitted to be in this situation, at the very least there should be other witnesses who can attest to the competence and intent of the donor. Many will make a video of the signing and have the donor state clearly for the camera that this is truly his or her intent. It sounds as though this lawyer took very few precautions, but if you are concerned, you should make a further investigation to see if you can find out what really happened.
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I will tell you, this will cost a fortune in litigation as painful as it is this does not sound good. I have been a similar situation for 6 years. Good luck.
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