Free Codicils
(Added 6/10/2009)
At a church, I was very surprised to see a handout promoting the organization's legacy society and offering the services from a group of attorneys (15 names were listed), who were church members and who have generously volunteered to draft codicils free of charge, if you name the church in your will. The flyer said that you must have a will and anything else besides the codicil that you discuss with the attorney is your own business. Is this practice of offering a group of volunteer attorneys from your organization to draft free codicils sound right?
It sounds benevolent, doesn't it? The attorney, who often costs an arm and a leg, is willing to perform this duty - adding a codicil to a will so that the church will be included in a person's estate plan - for free. Presumably the church isn't fronting the cost, so no one is hurt: the church establishes a future gift and the donor doesn't pay. Furthermore, the church, by providing a list of 15 names, isn't favoring any one attorney. Ethically, this is as good as it gets, right?
Not exactly. It shouldn't take much to see what's really going on: the attorneys are using the church to establish business through a loss leader. The brochure indicts itself: " . . . anything else besides the codicil that you discuss with the attorney is your own business.: That's really big of the church - to permit the donor to discuss a private matter with an attorney. But, it's actually worse than merely granting grotesquely unauthorized permission. The brochure is actually inviting new and remunerative - business for the attorneys. While no one disputes the need for people to have solid estate plans or the need for attorneys to be paid well for designing them, whose loyalty does the attorney have in mind when there is a conflict? The church, to which the attorneys have already evidenced loyalty by offering to take part in the process of increasing its legacy gifts? Or the donor, who, after paying for "anything else besides the codicil," has the right to expect impartiality on every matter of his or her estate plan including whether to leave a bequest to the church?
This is no mere theoretical exercise; the likelihood of a conflict is too great to dismiss. Anyone who remembers the Texas Lawsuit in the 1990s or who has been following the drama of the Brooke Astor estate feud in New York knows the realities of how careful attorneys must be when deciding who their clients are. The conflict, as described in this situation, should be avoided as it trumps the good that the church is trying to do.