Hello and welcome to this Ethics Alert blog which will discuss new Florida Statutes §732.806, which is effective today, October 1, 2013. The new statute provision makes an improper gift to a lawyer in an estate planning instrument void as a matter of Florida law. The statutory provision is here: http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0700-0799/0732/Sections/0732.806.html
The new Florida statute in effect tracks 4-1.8(c), Rules Regulating The Florida Bar and incorporates it into the probate code, and makes a violation of the statute a basis for voiding any part of a will, trust or other written instrument which makes an improper client gift to the drafting lawyer or a person related to the lawyer. The statute also provides exceptions to this prohibition, including gifts where the lawyer or other person is related to the person making the gift as well as title to property acquired for value from a person who receives the property which violated the statute.
The previous (common law) rule in Florida probate was that gifts made to lawyers in violation of Bar Rule 4-1.8(c) were not automatically void; however, the gifts created arebuttablepresumption of undue influence by the drafting lawyer.
F.S. §732.806(1) states:.
732.806 Gifts to lawyers and other disqualified persons.—
(1) Any part of a written instrument which makes a gift to a lawyer or a person related to the lawyer is void if the lawyer prepared or supervised the execution of the written instrument, or solicited the gift, unless the lawyer or other recipient of the gift is related to the person making the gift.
F.S. §732.806(7)(a) further states:
(7) For purposes of this section:
(a) A lawyer is deemed to have prepared, or supervised the execution of, a written instrument if the preparation, or supervision of the execution, of the written instrument was performed by an employee or lawyer employed by the same firm as the lawyer.
Bottom line: As of today (October 1, 2013), improper client gifts made by a lawyer to him or herself in a testamentary instrument are now void as a matter of law.
Be careful out there!
Important disclaimer: this Ethics Alert does not contain any legal advice and the statements and comments herein should not be relied upon by anyone who reads it.
Joseph A. Corsmeier, Esquire
Law Office of Joseph A. Corsmeier, P.A.
2454 McMullen Booth Road, Suite 431
Clearwater, Florida 33759
Office (727) 799-1688
Fax (727) 799-1670