Can a lawyer who drafted and witnessed a will later represent heirs trying to defeat that will in probate?

Plain-English summary

A lawyer prepared and witnessed a will for a client he then believed mentally competent. Two months later, the client's brother and sister advised him of conduct suggesting incompetence, and they employed the lawyer to institute a sanity inquest; the former client was adjudicated mentally incompetent and later died. When the named executor offered the will for probate (along with an earlier holographic will), the lawyer told the probate court he had come to believe the client was incompetent on the date the will was executed and for some time before. The next of kin then wished to employ the lawyer to oppose probate of that will. The committee was asked whether he could, and answered no.

The committee placed the matter within Canon 6. It reasoned that a lawyer should not attempt to nullify his own work, and that the death of the former client does not release the lawyer from his obligation to that client. It concluded it would be improper for the attorney to represent the next of kin in their efforts to defeat the instrument he had prepared.

Currency note

This opinion was issued in 1962 under the former Canons of Professional Ethics (in effect in Kentucky from 1946 to 1971) and predates both the 1990 adoption of the Rules of Professional Conduct (SCR 3.130) and the substantial 2009 revisions to those rules. Subsequent rule amendments and later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against the current rules before relying on any specific point mentioned here.

Common questions

Q: Can a lawyer who drafted a will later attack it on behalf of others?

A: Under this opinion, no. The committee held a lawyer should not attempt to nullify his own work, so he may not represent the next of kin opposing probate of a will he prepared.

Q: Does the client's death end the lawyer's duty?

A: No. The committee said the death of the former client does not release the lawyer from his obligation to that client.

Q: Did it matter that the lawyer believed the testator was incompetent?

A: The committee did not rest its answer on competence; it treated the conflict with the lawyer's own prior work and his continuing duty to the deceased client as controlling under Canon 6.

Background and rules framework

The opinion applied Canon 6 of the former Canons of Professional Ethics, addressing a lawyer's duty not to act against his own prior work and his continuing obligations to a client. The modern analogs are Model Rule 1.9 (duties to former clients) and Model Rule 3.7 (a lawyer as witness, given that the lawyer had witnessed the will), with Kentucky's counterparts at SCR 3.130(1.9) and SCR 3.130(3.7).

Citations and references

Rules of Professional Conduct:

• Canon 6 (conflicting interests and duty to a client); modern analogs Model Rules 1.9 and 3.7

See also

• KBA Ethics Op. E-48: Associate as a Witness in a Case
• KBA Ethics Op. E-14: Family Lawyers and Estate Fees

Source

• Landing page: https://kybar.org/For-Members/Rules-Ethics-Information/Ethics-Opinions
• Original PDF: https://kybar.org/Portals/0/Admin/Ethics%20Opinions/KBA_E-001.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-l
Issued: March 1962

Question.

May an attorney represent the next of kin in opposing the probate of the will which
the attorney had prepared and witnessed?

Answer:

No.

References:

Canon 6
OPINION

The facts are that on May 10, 1960, an attorney prepared and witnessed the execution of a
will for his client, whom the attorney considered at that time to be mentally competent. Two
months later the attorney was advised by the brother and sister of the client of certain conduct on
the part of the client that demonstrated that he was mentally incompetent. The attorney was
employed by the brother and sister to institute a sanity inquest, which was done, and the former
client was duly adjudicated to be mentally incompetent on September 22, 1960. The former client
thereafter died and the Executor named in the will offered it for probate, at which time an earlier
holographic will was also tendered for probate. The attorney informed the Probate Court that at the
time the will was executed, he believed the client was mentally competent but, by close
observance, he had subsequently concluded that the client was incompetent on that date, and had
been incompetent for quite some time prior thereto. The next of kin desire to employ the attorney
to oppose the probate of the will.
The question is: May the attorney represent the next of kin in opposing the probate of the
will which the attorney had prepared and witnessed?
We are of the opinion that this case falls within Canon 6. An attorney should not attempt
to nullify his own work, and the death of the former client does not release the attorney from his
obligation to that client. It would be improper for the attorney to represent the next of kin in their
efforts to defeat the instrument which the attorney had prepared.

Note to Reader
This ethics opinion has been formally adopted by the Board of Governors of the Kentucky
Bar Association under the provisions of Kentucky Supreme Court Rule 3.530 (or its predecessor
rule). The Rule provides that formal opinions are advisory only.