Wills, Trusts & Estates Prof Blog

Editor: Gerry W. Beyer
Texas Tech Univ. School of Law

Monday, March 5, 2007

Unauthorized Practice of Law

In Franklin v. Chavis, No. 26251(S.C. Jan. 22, 2007), the Supreme Court of South Carolina considered the issue of whether an insurance agent engaged in the unauthorized practice of law by drafting a will, a power of attorney, a renunciation of administration, and a waiver of bond form.

The facts were as follows:

Ms. Weiss [the decedent] was ninety-one years old and in the hospital when she signed [her] will on July 31, 2004.  [Her grandnieces] claim Michael Lehman, Ms. Weiss’s nephew by marriage, took advantage of her condition to influence her to make this will leaving 60% of her estate to Lehman and only 10% to each of Ms. Weiss’s three grandnieces and their mother, Lynn Franklin.  Respondent [the insurance agent], a former neighbor of Ms. Weiss, drafted this will.  The will names respondent as personal representative of Ms. Weiss’s estate but he is not a beneficiary.

Respondent also drafted a power of attorney that Ms. Weiss signed along with the July 31 will.  This document names respondent as her attorney-in-fact.  Respondent used this power of attorney before Ms. Weiss’s death to close a real estate transaction on her behalf.  Ms. Weiss died on September 27, 2004.

The third document in question is a Renunciation of Administration regarding the estate of Ms. Weiss’s daughter, Sara Crossman, who died in May 2004.  Ms. Weiss  signed this document on September 14, 2004, relinquishing her right to act as personal representative for Sara’s estate and nominating respondent to act in that capacity.  Ms. Weiss also signed a waiver of bond form for Sara’s estate enabling respondent to serve without posting bond.

The court considered the four documents separately, beginning with the principle that when one acts as “more than a mere scrivener”, then “[e]ven the preparation of standard forms that require no creative drafting may constitute the practice of law.”  Such practice is unauthorized where the individual has not met local bar requirements.

The will:

Respondent selected the will form, filled in the information given by Ms. Weiss, and arranged the execution of the will at the hospital.  Although these facts are not in themselves conclusive, the omission of facts indicating Ms. Weiss’s involvement is significant.  There is no evidence Ms. Weiss reviewed the will once it was typed.  The will was not typed in her presence and although respondent relates the details of what Ms. Weiss told him to do, there is no indication he contemporaneously recorded her instructions and then simply transferred the information to the form.

We construe the role of “scrivener” in this context to mean someone who does nothing more than record verbatim what the decedent says.  We conclude respondent’s actions in drafting Ms. Weiss’s will exceeded those of a mere scrivener and he engaged in the unauthorized practice of law.

The Power of Attorney:

There are no details regarding respondent’s drafting of this document.  It uses legal phrasing with two pages of text and is not a simple form with filled-in blanks.  The document itself confers wide-ranging legal rights and would clearly require legal advice in its preparation.  We conclude respondent engaged in the practice of law in drafting this document.

The Renunciation of Administration and Waiver of Bond form:

While these forms do have legal implications, they are straight-forward and are provided to the public by the court.  These simple forms are clearly distinguishable from the will and power of attorney discussed above.  Respondent basically inserted names, addresses, and dates.  There is no evidence respondent gave legal advice to Ms. Weiss regarding these forms.  We find there is no factual support for the claim that respondent engaged in the practice of law by filling out these forms.

While the court did not remove the agent from his position as personal representative, it said that he was not entitled to the statutory compensation that a personal representative would otherwise receive. It also declined to find the will void, saying that was an issue for the trial court to decide in the underlying matter, and that “[the will] should not be invalidated simply because it was drafted by a nonlawyer.”  Finally, the court declined to grant restitution to the decedent’s grandnieces because there is “no private right of action in South Carolina for the unauthorized practice of law.”

Special thanks to Patrick S. Sylvester (Attorney, Wilmette, IL) for bringing this case to my attention.

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