Saturday, September 3, 2011

Brownie's Will

In a manner similar to the case posted directly below, the Illinois Review Board found that a censure was the appropriate sanction to recommend in a matter involving an attorney's drafting of a will that left a small portion of the deceased's residual estate to the attorney's wife.

The facts:

At the hearing, the following facts were presented to the Hearing Board, by way of the testimony of numerous witnesses, including the Respondent. At the time of the hearing, Respondent was 81 years old. Respondent has been practicing for over fifty years in Lincoln, Illinois. He served in the United States Army from 1954 to 1956 and was then in the Army reserve for six years. He is married to Jean...and has six daughters. He maintains a general practice in Lincoln. At times, he has also been employed as an Assistant States Attorney and as a city attorney for the town of Lincoln. He was elected and served as Logan County State’s Attorney from 1964 to 1968.

Respondent first met Charles Ellsworth Brown when Respondent was in grade school. Most people in Logan County referred to Mr. Brown as "Brownie". Mr. Brown was older than Respondent but they shared a common interest in sports. Mr. Brown went on to become a Major League baseball scout and later a state meat inspector. Respondent has lived and practiced in Lincoln; Mr. Brown lived in Beeson, Illinois, about 13 miles from Lincoln. It is a small community and they would often meet throughout the years at political and social events. Mr. Brown was married but had no children; he would often stop by Respondent’s office or home to visit. Respondent attended Mr. Brown’s 50th wedding anniversary party and his 90th birthday party; Respondent remembered that Mr. Brown had attended respondent’s surprise 60th birthday party. Mr. Brown knew Respondent’s wife and daughters through Respondent.

Respondent performed some legal services for Mr. Brown’s mother. He also handled Mr. Brown’s tax returns for a number of years. In 1986, Mr. Brown asked Respondent to draft wills for him and his wife. Mr. Brown did not have any brothers or sisters and Mrs. Brown had only one niece who was not particularly close to Mr. Brown. Mr. Brown’s will left his estate to his wife, but included a bequest which read, "I give and bequeath the round antique occasional table with four legs and all my woodworking and shop tools to Jean..." Jean..., Respondent’s wife, is not related to Mr. Brown. Respondent engaged in woodworking at the time. Respondent testified he did not solicit the gift. Respondent knew there might be an ethical issue with a bequest by a client to Respondent, but he did not then research the issue of a client giving a gift to his wife.

In 1992, Mr. Brown came to Respondent to make changes to his will. The 1992 will provided for the same bequest to Respondent’s wife as the 1986 will. Respondent was unaware that by 1992, the Illinois Supreme Court had adopted the Rules for Professional Conduct. He did not, therefore, look at the Rules...


After the death of Mr. Brown’s wife in 1998, Mr. Brown again came to Respondent to draft a new will. The will made the same bequest to Respondent’s wife. In 1999, Mr. Brown wanted to again amend his will. At this time, along with other changes, Mr. Brown added a bequest to Jean Peters of five percent of the residuary of his estate. Mr. Brown insisted on the bequest, telling Respondent that they were friends and that Respondent’s wife had been good to him. Respondent testified he told Mr. Brown that it could be a conflict of interest, that one of the other beneficiaries might raise that question, and that he could consult with another attorney. Mr. Brown replied that he did not trust other attorneys. Respondent testified he thought Mr. Brown’s estate at the time was modest, although he knew Mr. Brown owned a two-thirds interest in a $300,000 family farm, received pension and social security benefits, and owned some certificates of deposit.

 Mr. Brown died of an aneurysm on January 21, 2009 at the age of 94. Respondent and several other witnesses, including Judge Michael McCuskey, a close friend of Mr. Brown, testified Mr. Brown was mentally competent until his death. Judge McCuskey also testified that Mr. Brown talked about Respondent favorably, but he did not talk about his relatives. Although Judge McCuskey was not aware of the specific bequests in Mr. Brown’s will, he testified he was not surprised that Mr. Brown had favored Respondent’s wife with a bequest, nor was he surprised that Mr. Brown had not solely favored his relatives. He knew that Mr. Brown did not plan to leave much to his distant relatives. Because Judge McCuskey was concerned that one of Mr. Brown’s relatives might try to contend that Mr. Brown was not mentally competent, he asked another judge, Judge John McCullough of the Illinois Appellate Court, to visit Mr. Brown shortly before his death to confirm Mr. Brown’s mental state.

After Mr. Brown’s death, one of the other legatees in the will, Marjorie Devore, filed a charge against Respondent with the Attorney Registration and Disciplinary Commission. She did not, however, ever file a will contest. After Respondent learned of the ARDC investigation, Jean... disclaimed any interest in Mr. Brown’s estate. Respondent withdrew as attorney from the estate but remained as executor. The estate was worth approximately $1.6 million dollars, which surprised Respondent. The table bequeathed to Respondent’s wife was worth about $100 and the tools sold for less than $30. At the time of the hearing, the estate had not yet been closed.

As in the prior case, there was no suggestion of undue influence or any other blemish on the attorney's record. (Mike Frisch)

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