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This page is a compilation of some of the recent developments in our firm’s Practice Areas. To check for updates in your area of interest, simply click on the Practice Area to your left.

Estate Planning

Rydde v. Morris, 381 S.C. 643, 675 S.E.2d 431 (2009).
Opinion No. 26619, decided March 23, 2009.

Approximately one month before her death, the decedent engaged an attorney to prepare her estate planning documents. A few days before becoming completely nonresponsive, the decedent provided a completed estate planning questionnaire to the attorney, but the attorney did not draft a will in time for execution before the decedent’s death. As a result, the decedent’s estate passed through intestacy, and several individuals whom the decedent had contemplated as beneficiaries brought this malpractice action against the attorney for failure to timely draft a will. The trial court dismissed the case and the South Carolina Supreme Court affirmed. Relying on settled principles of South Carolina case law, as well as reported decisions from other states, the court adamantly rejected the plaintiffs’ invitation to impose on attorneys a duty in favor of non-client prospective beneficiaries to draft wills in a timely manner.

South Carolina Dept. of Mental Health v. McMaster, 372 S.C. 175, 642 S.E.2d 552 (2007).
Opinion No. 26269, decided February 20, 2007.

In this case, the South Carolina Supreme Court found that the deeds and the legislative acts giving rise to the state mental hospital/asylum clearly evidenced the creation of a charitable trust in favor of the Department of Mental Health. Therefore, the Legislature could not terminate or alter the trust, but instead must seek court approval. Because the property was no longer necessary to house and treat mental patients, the court held that the doctrine of equitable deviation should be utilized to allow the property to be sold. However, the proceeds of any sale were required to be held in trust for the benefit of the Department of Mental Health and the treatment of mental patients.

Franklin v. Chavis, 371 S.C. 527, 640 S.E.2d 873 (2007).
Opinion No. 26251, decided January 22, 2007.

The South Carolina Supreme Court heard this case in its original jurisdiction because the case involved a question of whether a person engaged in the unauthorized practice of law. The central issue was whether a will was invalid because it was drafted by a non-lawyer. The court held that the preparation of a will constitutes the unauthorized practice of law when the drafter acts as more than a mere “scrivener,” which the court defined as someone who does nothing more than record verbatim what the decedent says. Because the drafter prepared the will outside the decedent’s presence and there was no evidence that the decedent ever actually reviewed the will, the drafter’s role exceeded that of a mere scrivener. However, the will was not invalid merely because it was drafted by a non-lawyer. Instead, its validity depended upon whether it reflected the decedent’s true wishes.

 

 

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