Is it acceptable practice for a lawyer to prepare estate planning documents that leave a client's assets to him or her? A very interesting case pending before the Michigan Supreme Court should answer this question. The Michigan Code of Professional Conduct, that governs lawyers licensed by the State Bar, states very clearly that a lawyer shall not prepare an instrument giving the lawyer (or a close relative) a substantial gift, including by will, from a client MRPC 1.8(c). Yet, this is exactly what happened in the case of Papazian v Goldberg, where lawyer Mark Papazian prepared the will for his long-time friend and client, Robert D. Mardigian, that left Papazian an estate of about $20,000,000 to the exclusion of Mardigian's longtime girlfriend, nieces and nephews.
One of the most fruitful and confused areas of estate and trust litigation involves the mental capacity of the grantor of a trust. Not too long ago, the Michigan legislature made it clear that the mental capacity necessary to create a trust is the same as the mental capacity necessary to make a will. But a significant problem remains. How do you know?