Due in part to the availability of legal forms and general legal advice online, people often think they can draft legal documents without the assistance of an attorney. A recent Illinois case demonstrates how "do-it-yourself lawyering" can be ineffective and/or harmful.
In that case, an attorney reportedly created a trust for a father and mother. The trust stated that when the father died, family property would go to their son, but the son had to pay each of his two brothers the equivalent of one third of the appraised value of the farm. The court recited that before the father died, he directed the son (who was not an attorney) to write an amendment to the trust stating that the property couldn't be valued at any more than a set figure and that the son had the option of buying his brothers' shares of the real estate for no more than one third of the stated figure.
The terms of the amendment, if they had been effective, would have effectively eliminated the need for an appraisal. The father signed the amendment. The original trust document said that the trust could be amended by a written instrument signed by the father or mother and delivered to the trustee. After the father died, the son's brothers filed a lawsuit seeking a declaration that the document written by the son was not an effective amendment of the trust because it was not prepared by an attorney. The brothers allegedly felt that the value of the land was much higher than the figure specified in the amendment and shouldn't be capped.
The Illinois Court of Appeals determined that the document did not amend the living trust because it was not prepared by an attorney. Under the Consumer Fraud and Deceptive Business Practices Act, the drafting of a living trust document by a non-lawyer for another person is prohibited. The court determined that the amendment was a "living trust document" as defined in the Act. Since it wasn't prepared by an attorney, the amendment was not effective, and the father's wishes were not carried out.
In recent years there has been a trend toward persons desiring to perform work themselves or for family members which traditionally has been accomplished by professionals. This case demonstrates how a person's wishes may be thwarted due to attempts by non-lawyers to perform legal work. Other attempts at do-it-yourself legal work can have even more serious consequences. Legal forms and advice found on the internet or in a local library do not take a person's specific facts and circumstances into account and are, therefore, poor substitutes for consulting a lawyer. There is no such thing as "one size fits all" legal work; it is very important to consult an attorney for proper and effective legal advice or documents.
This article is intended to present general information for educational purposes, is not legal advice and should not be relied upon in connection with any particular matter. The reader is advised to immediately retain their own separate legal counsel with respect to any specific legal issue. Rights to bring a claim will expire through the passage of time by the applicable statute of limitations.
Ralph E. Elliott practices law at Law Offices of Ralph E. Elliott, A Professional Corporation which is comprised of Attorneys in Freeport, Illinois who have over 34 years of experience including an Estate Planning, Elder Law, Accident and Personal Injury Law practice. The firm is situated at 1005 W. Loras Drive, Freeport, IL 61032 and serves business, individuals and the agriculture community in Northwest Illinois.
©Law Offices of Ralph E. Elliott, A Professional Corporation 2011.
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