The Meaning Of “Assist”

The Illinois Review Board proposes a public censure of an attorney whose failure to promptly attend to a testamentary document led to worse problems

In December 2013, Respondent met with William Theobold and one of William’s three daughters, Judy Shutt, to discuss William’s estate plans. William, a lifelong farmer, was 86 years old and living in a nursing home at this time. Respondent suggested that William change his current estate plan, created in 2003, by putting title to his farmland in a trust and transferring 80 acres of it outright to his daughters, rather than devising it to his daughters, then grandchildren, then great-grandchildren through life estates, as the 2003 plan provided. William agreed, and Respondent agreed to prepare a declaration of trust, deed in trust, and will for William.

After this meeting, Respondent never met or spoke with William again. Respondent was very busy between December 2013 and March 2014, and did not complete the documents. On Thursday, March 27, 2014, Judy’s husband and William’s son-in-law, Bill Shutt, called Respondent’s office and spoke with his secretary, Lori Rakes. Bill told Lori that William was in the hospital, that they didn’t know how much time William had left to live, and that they wanted William to sign the paperwork to change his estate plan. Lori contacted Respondent and gave him this information. Respondent told her to tell Bill that he could pick up the paperwork the next day and that Respondent would be out of the office that day. Respondent also testified that he spoke directly with Bill on Thursday, and Bill told him that William still wanted his estate documents done. They did not discuss William’s condition. Respondent began working on the estate documents for William and stayed late at his office that night to finish a draft of them.

Then

On Friday morning, March 28, Lori finished typing the final version of the documents. Respondent spoke to Judy by phone and told her the documents had been prepared. He went over the estate plan with her and asked if all three of William’s daughters were still on board with it, and she told him they were. She did not tell him about William’s condition and he did not ask about it, nor did he ask to speak with William. He told Judy the documents could be picked up at his office, taken to the hospital to be signed, and returned to his office. He said he would take care of witnessing and notarizing the documents. Respondent left his office at 9:30 a.m. for a weekend trip, without meeting with or speaking to William.

Later that morning, Bill picked up the estate documents from Respondent’s office, and brought them to the hospital for William to sign. William, however, was unconscious or asleep, and unable to sign the documents. Bill called Respondent’s office and spoke with Lori. He told Lori that William was unable to sign the documents and asked if the family could “assist” William in signing. Lori put Bill on hold, contacted Respondent, and relayed Bill’s question. Respondent told Lori to tell Bill that the family could assist William in signing the documents, which she did. Respondent did not ask to speak with Bill; did not ask or tell Lori to ask why William needed assistance signing the documents; and did not tell Lori to ask about William’s condition. Respondent testified that he thought William was weak and needed help holding the pen, and that it did not occur to him that William was unconscious.

Judy’s sister Joyce held a magazine or book to put each signature page on, and Judy held William’s hand and signed his name. William was not conscious at the time. Bill took the signed documents back to Respondent’s office, leaving them on Lori’s desk because she was at lunch. He returned to the hospital by late morning. William died a few hours later. Bill called Respondent’s office and left a voicemail message that William had died.

When Respondent returned to his office early in the morning on Monday, March 31, he saw the returned documents. He also heard the message from Bill informing him that William had died on Friday afternoon. Respondent determined that the documents had been signed prior to William’s death. But neither the will nor declaration of trust contained a signature of a witness, and neither the declaration of trust nor deed in trust had been notarized.

Even though Respondent was not present when the will and declaration of trust were signed on March 28, he signed both documents as a witness. He also asked Lori to sign as a witness, even though he knew she had not witnessed the signing of the documents. Respondent also notarized the declaration of trust and deed in trust, thereby certifying that William had appeared before him on March 28, 2014 and signed the documents. Shortly thereafter, he recorded the deed in trust and declaration of trust in the Sangamon County Recorder’s Office.

Inevitably

In the months following William’s death, a dispute arose among William’s three daughters about the new estate plan. Joyce believed the trust favored her sisters, Judy and Patti. In October 2014, Respondent met with Joyce, her husband, and her lawyer. At that meeting, Respondent learned that, during the night of Thursday, March 27, 2014, William had become unable to consent to or approve documents.

Respondent testified that he was shocked to learn of William’s condition, and immediately stated that the new estate planning documents had no legal significance and were null and void, and that William’s estate would have to be administered in accordance with his 2003 will. Lori testified that she, too, was shocked to learn that William had been unconscious when his name was put on the estate documents.

Because the sisters could not reach agreement on the matter, in February 2015, Respondent filed William’s 2003 will and initiated probate proceedings in the Circuit Court of Sangamon County. In April 2016, the sisters reached an agreement in their dispute, and in July 2016, the probate matter was closed.

The Hearing Committee felt that a censure sufficed; the Administrator sought a 30-day suspension.

In this matter…Respondent seemed to get swept up in the exigencies of the situation, and allowed his desire to help his hospitalized client override his judgment. We find compelling that Respondent has taken complete responsibility for his actions and expressed deep and sincere remorse for his conduct. We believe, as did the Hearing Board, that Respondent had “an isolated lapse of sound judgment;” that he made a mistake that he will not repeat; and that his misconduct is an aberration in his “lengthy and otherwise honorable legal career.” (Hearing Bd. Report at 29.)

In sum, we believe that, under the circumstances involved here, censure comports with the purposes of attorney discipline and is amply supported by precedent. We therefore recommend that Respondent be censured for his misconduct.

(Mike Frisch)