Legal Question in Wills and Trusts in Kansas

conflict of interest being both attorney & beneficiary in a trust?

Is it legal or ethical for a Kansas

attorney to write the will and trust for

their parent in which they are named as

one of the beneficiaries and also in the

line of successor trustees. Further, this

attorney continually ''interprets'' the

intent of the trust to current trustees

(parent is still living) while demanding

continual rights and privileges as

beneficiary, such as demanding to see

all stored property, (house had to be

sold and except for keepsakes

requested by beneficiaries, all other

items have been placed in storage until

the parent's death or until the majority

of the children can go through things

together) demanding current ST talk to

her on the phone, while threatening

court action or court orders when she

doesn't get her way-to the point of

harassment. Another lawyer was

contacted for opinion and

interpretation, but she wrote a long

document negating everything he said.

There's much more, but is it legal and

ethical for a lawyer in Kansas to do

these things? Is this a conflict of

interest? What can the successor

trustee or other beneficiaries do? (there

are 11) Please help and advise.

Thanks!


Asked on 12/05/06, 9:26 am

1 Answer from Attorneys
Anthony Smith LawSmith

Re: conflict of interest being both attorney & beneficiary in a trust?

This is a very tricky and sticky question. As a Trust beneficary, the attorney may have a right to an accounting by the current trustee. But, if that lawyer has that right, all the beneficaries have that right. Not all trusts give a beneficary the power to demand an accounting. If the lawyer is a beneficary, it would be unethical for that attorney to accept representation in "interpreting" the trust intent for the current Trestee(s), to the extent that it would affect her right to an accounting or any other beneficary. It would be akin to self-dealing and the Supreme Court frowns on lawyers doing that.

It may not be smart for an attorney to draft a trust that benefits herself and then act as successor trustee. There are many avenues by which interested parties may attack the trust based upon this interested fiduciary relationship. I don't beleive her malpractice insurer would look favorably upon that course of action. Not only could they be found liable for malpractice, but the Court could wipe out her interest in the property of the trust, and perhaps discipline her.

In a forum such as this you are very limited in the amount of information you can provide. If you feel that there has been a misdeed, you need to consult with an estate or malpractice attorney in a manner that would allow them to know all the facts, before you make any specific accusations or waive any formal claims.

There are many good attorneys in your area that can halp you.

Good Luck

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Answered on 12/05/06, 12:56 pm


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