August 10, 2007
Where There's A Will
A recent bar discipline case from Massachusetts (summary linked here) involves the issue of a lawyer's participation in drafting a will that benefits the lawyer or his relatives. The lawyer was not related to the testatrix, but his parents had been friends with her since 1945. His father had served as her attorney and had drafted a earlier will. Subsequently, the lawyer assumed responsibility for the representation and drafted a will that benefited himself and his mother. The attorney and his mother remained close and provided care and assistance to the testatrix. When the testatrix died, her godchildren (apparently unhappy with their share of the estate) filed a complaint with bar counsel.
The attorney was sanctioned with a public censure for violation of Rule 1.8(c). The rule prohibits a lawyer from drafting a will in which the lawyer inherits, with an exception for a lawyer related to the testatrix. In D.C., a recent rule amendment extends the exception to persons who have a close, family-like relationship with the testatrix. Such an exception would likely have prevented any finding of an ethical violation.
Practice tip: if you want to inherit, it's always safer to have an independent lawyer draft the will. (Mike Frisch)
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