Jones v. Krown, 218 S.W.3d 746 (Tex. App.—Fort Worth 2007, pet. denied).
Attorney drafted a will for Testator which named Paralegal (an
independent contractor) as both a beneficiary and as the executrix.
After Testator died, his sister filed a motion for a declaratory
judgment to set aside the gift to Paralegal under Probate Code § 58b
which states that a testamentary gift to “employee of the attorney who
prepares or supervises the preparation of the will is void.” Both the
trial and appellate courts agreed that Paralegal’s gift was void and
that the property passed via intestacy to his sister.
The court was unimpressed with Paralegal’s arguments that § 58b did not
apply to her. The court found it irrelevant that Paralegal was not
involved with the drafting of Testator’s will and that she was not
present when Testator executed the will. In addition, her technical
status as an “independent contractor” did not keep her from falling
within the purview of the term “employee” as used in the statute.
Because § 58b does not define the term, the court relied on the “plain
and common meaning” of the word, that is, someone who works for someone
else and receives payment for that work. Because Paralegal worked for
Attorney and was paid for her work, she qualified as an employee. The
court also explained that the application of § 58b to void Paralegal’s
gift “is consistent with the Legislature’s intent * * * which was to
avoid having an interested person use his position of trust to benefit
himself.” Jones at 749.
Moral: An attorney should not draft a will which leaves property to one
of his employees unless one of the exceptions in § 58b applies and even
then, prudent practice may be to send the testator to a completely
disinterested attorney.