Attorney used own notary stamp on will to benefit self

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Latest post 12-03-2010 9:07 AM by Drew. 14 replies.
  • 12-02-2010 12:27 PM

    • GJR1969
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    Attorney used own notary stamp on will to benefit self

    [This only relates tangentially to a will, but saw no other appropriate forum for this question]

    I was wondering if someone could help me with the following.

    There is an acquaintance of mine who has a sibling who is an attorney. Approximately 1 year ago, the sibling handed a new version of a trust to his father who was deathly ill in the hospital after he had not been gotten proper care for very preventable disease (and died 3 days later). Even if the father's mental state normally were fine (which is in doubt), he was on the verge of death and not particularly coherent when this will was shoved under his nose. The sibling who is the attorney then used his own notary stamp on the will that would benefit him and pose restrictions on what another sibling would receive, when his father was in such desperate condition. The place of "residence" on the will is listed as the hospital. Obviously this seems reprehensible.

    It is not a question of overturning the will, though there would have been good grounds to do so at the time, because in the previous version all estate assets would just first revert back to the mother who has been seriously deluded and influenced by some of her children and the result would have been the same. The question is: Is there universal agreement that this would be a serious breach of ethics for an attorney to do such a thing, using his own stamp, when his father was in such a desparate medical state? Would there be sanctions one could take in the state of New York against such an attorney, writing to the state Bar Association or other actions?

    Appreciate any thoughts!

    GJR

     

  • 12-02-2010 12:40 PM In reply to

    • Drew
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    Re: Attorney used own notary stamp on will to benefit self

    NY or CT?

    Trust or Will?

    The signature requirements for a will may be more strict than for a trust--but the mental capacity required to make a will is likely lower.

    In some states it is a big negative deal for a witness to be a beneficiary under a will--other states is not an issue.

    Sure it raises possible conflict of interest issues --but you need state specific counsel to comment on specific instruement that was executed.

    Hard to divine if son provided a service to dad or to his own pockets....

    Would have been a lot smarter to use unrelated counsel.

     

    You may well have a valid point...but only the heirs/beneficiaries who got shorter end of stick matter--law enforcement/bar will likely punt.... so how much were other beneficiaries shorted by revised trust--and why have you/they  been sitting on the point for nearly a year?

     

     



  • 12-02-2010 12:40 PM In reply to

    Re: Attorney used own notary stamp on will to benefit self

    As far as I know, a notary can not used their stamp for anything that may create or appear to create a conflict of interest. Furthermore, technically, a notary stamp and signature is not valid unless entered into the notary's log book and signed by the recieving party. Just my opinion.

  • 12-02-2010 12:44 PM In reply to

    Re: Attorney used own notary stamp on will to benefit self

    All the notary does is guarantee the validity of the signature. That does not seem to be in question.

  • 12-02-2010 1:30 PM In reply to

    • GJR1969
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    Re: Attorney used own notary stamp on will to benefit self

    It would be in the state of NY. The person has been sitting on this because there was never a question of challenging the will because even if there was success, it would just mean the estate would go to the mother before the children. Now it has reached phase II where the other siblings are trying to anger the mother into breaking open the trust and divide it among themselves, as my friend knew would be the case all along.

    I think it is more a question of the ethics of the matter, if this would be considered good practice for an attorney to use his own notary stamp on a trust that is strongly in his/ his son's favor on a man who was desperately ill in a hospital bed.

    The beneficiary subjected to a per stirpes trust stipulation while another sibling also with another with no children was not nor was any restriction placed on the siblings with children (i.e. going to the children and not the spouse). Said beneficiary has medical issues, so this meant him likely unable to enjoy his full equal share and it was also perceived as a prelude for the other siblings to just crack open the trust and divide everything and leave my friend out, which is in the process of happening now.

  • 12-02-2010 1:42 PM In reply to

    Re: Attorney used own notary stamp on will to benefit self

    According to the CT Notary Manual, the

    • The Office of the Secretary of the State strongly recommends that notaries exercise great caution when performing notarial acts in transactions where the notary has some beneficial interest, or which involve family members.

    However, it is not a "prohibited act" as defined on Page 12:

    http://www.sots.ct.gov/sots/lib/sots/legislativeservices/forms/notarymanual.pdf

    And from the NY handbook Page 6:

    • In New York the courts have held an acknowledgment taken by a person financially or beneficially interested in a party to conveyance or instrument of which it is a part to be a nullity;

    http://www.dos.state.ny.us/licensing/lawbooks/NOTARY.pdf

    Note that it refers to the "acknowledgment." I have no idea how that affects the document itself.

    Frankly, if sibling is upset at the results of the revised trust, then attempting to punish the "notary" is like peeing in the ocean to make the tide come in.

    Sibling needs to address the validity of the revised trust based possibly on duress or diminished capacity for which sibling will need a large barrelful of money for litigation. And if the end result is that the estate goes to mother and sibling doesn't get anything anyway, litigation hardly seems to make sense.

    And while ratting out the "notary" to the state might get sibling some satisfaction, it won't get him any money.

     

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  • 12-02-2010 1:42 PM In reply to

    • LdiJ
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    Re: Attorney used own notary stamp on will to benefit self

    I am a notary, and under my state's laws for notaries I could not notarize a document that benefits me in any way.  I would guess that all states are pretty standard in that respect.

    However, since all a notary does (as Lynn says) is validate a signature, and everybody knows that dad actually signed the document, that really isn't the issue.

    The real issue is did the sibling coerce a person who was incompetent into changing their will?  However, again as you said, if that caused the will to be invalid, it would have simply reverted to an earlier will that wouldn't have resolved the current problem anyway.

    I would consider pretty much everything the lawyer sibling did to be unethical, but the question is, would that have changed anything for the sibling who is your friend?

     

     

     

  • 12-02-2010 1:43 PM In reply to

    • Drew
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    Re: Attorney used own notary stamp on will to benefit self

    1.You keep saying will one place and trust in another--now which docuement is under debate?

    2. Generally the law favors finality--so is there is a flaw and parties snoozed too long it may be game over?

    3. If to make a successful challenge produces a draconian result--may still be useful to force a draconian result--see who blinks first.

    4. Impossible to follow your fuzzy comments about one beneficiary being frozen out due to medical condition.

    5. I personally instigated an attack on a very complex will crafted by attorney having a conflict of interest as to his role v decedant --and  our side won--but it as a timely attack and not exactly a cheap attack!

       To sit there and contemplate your options is not going to move anything forward.

     



  • 12-02-2010 1:51 PM In reply to

    • GJR1969
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    Re: Attorney used own notary stamp on will to benefit self

    It is not som much about a legal resolution at this point, it is more about pointing out to the sibling that what he did was morally and ethically wrong. He engineered this conflict with the father, yet the father did not sign the trust until 5 months later, when he could have witnessed the will at his father's home at any time during the previous months. I am just mainly asking it so my friend could state with confidence to the brother that this was an unethical act. We already know there would have been sufficient legal grounds to have this overturned - a man with a severe blood diseases was not taken to the hospital for over a week even though he was bleeding out of his penis etc and then my friend was kept away from the hospital so they can rush this through.

    The next week, when the trust was revealed, they wanted my friend to come to the house to sign some forms so CDs could be divided equally among the dead father and the mother for tax purposes, but they were going to bring in another notary then. So obviously the brother didn't think it was "no big deal".

  • 12-02-2010 1:58 PM In reply to

    • GJR1969
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    Re: Attorney used own notary stamp on will to benefit self

    Again, it is not a question of taking legal action. My friend knew a year ago that he could have a good chance of having this will (and I can't be more specific, it's called a will, but refers to a per stirpes trust in the will) overturned but it would be a futile battle, costing lots of money, just to have it revert to the mother.

    All I am asking is whether, in the opinion of peers, this was an ethic move for the brother to do. The brother is now moving to phase II to convince his mother to crack open the trust and give it to the other siblings, leaving my friend with nothing. He wants to present some arguments to the mother about what was done wrong and why she should not be duped into cracking open the trust. So we want to say with solid footing that peers in his field (notaries/attorneys) would consider this to be unethical (shoving a new will under a dying man's nose is anyway) but I am asking about the notary aspect. Again, NOT trying to do retroactive legal action, trying to point out to the mother that what was done was wrong.

  • 12-02-2010 2:21 PM In reply to

    Re: Attorney used own notary stamp on will to benefit self

    GJR1969:
    trying to point out to the mother that what was done was wrong.

    Waste of effort.

    For one thing, you don't "crack open" a trust and "give it" to anybody.

    You administer the trust in accordance with the terms and conditions of the trust. And that happens regardless of who notarized the signature.

    For another, the notarization might be wrong in NY but it is not exactly prohibited in CT. If Mom is easily duped and manipulated by notary sibling, your friend pointing out that notary sibling did something wrong is not going to change him being left out of the money because the trust will have to be administered the way the trust says it's to be administered. And if the trust doesn't give your friend any money, then pointing out the error of the notary's ways isn't going to change that.

    Or does your friend think this is going to happen:

    Trust says Billy gets money, Johnny doesn't get any money. Johnny says "Mom, Billy did wrong." Mom says "No money for you, Billy, I'm giving it to Johnny."

    Not gonna happen.

     

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    • to keep and bear arms,
    • shall not be infringed.
  • 12-02-2010 2:26 PM In reply to

    • Drew
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    Re: Attorney used own notary stamp on will to benefit self

    It was not sound practice for son to craft a docuement for his client, his own father , that favored the son , the crafting attorney   --no two ways about that.

    But we are left to divine if these were Dads independent instruction or the  crafty steps of the drafthing attorney....

    That said  son is not on any high clean moral road --he would have been a whole lot wiser to insist the dad use independent counsel and for not doing same I'd say he is dead wrong. 

    Of course one of my legal friends was in the boat of his dad telling him expected son to do it-free-and why the heck should he pay some outsider to write what son did daily for others in his estate/trust practice!!! Lucky--there were no others on family tree to debate anything!

     



  • 12-02-2010 2:30 PM In reply to

    • GJR1969
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    Re: Attorney used own notary stamp on will to benefit self

    But we were told at the time by another attorney, perhaps incorrectly, that if the mother no longer has assets of her own (i.e. she transfers all assets to the children before her death), she can then break open the dead husband's trust. I believe the will states that she can use the husbands trust assets if she no longer has sufficient assets of her own. Now, of course, the tax implications of doing that are another question and they would probably lose a lot of the share of the other sibling that way, but they could do it simply out of spite.

  • 12-02-2010 2:35 PM In reply to

    • GJR1969
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    Re: Attorney used own notary stamp on will to benefit self

    The father did have an outside attorney but the brother basically gloated how he formulated it all and outside attorney implemented. The other thing too, is that he stirred up the anger in his father and got the whole family fighting months before but the father did not sign the new will for MONTHS.  The mother kept him from coming to the phone, even with a cordless phone. Then in his last week, he was not given care for a disorder which was very treatable, finally taken to the hospital on the verge of death, right in this time the siblings went into action, got the thing printed out and had the will drown up, and plop went the brother's notary stamp.

  • 12-03-2010 9:07 AM In reply to

    • Drew
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    Re: Attorney used own notary stamp on will to benefit self

    The story if true sure stinks but unless Mom or somebody took prompt challange to the will its soon too late to do so.

    It was Dad's money and except for a duty to provide for Mom , it was his to use or abuse as he saw fit.

    Now if son designed an abuse to benefit son--that may be a different story--but apparently Mom chose not to make a timely contest of the last minute will ?



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