When a lawyer jointly represented spouses on their wills, can the lawyer secretly draft a codicil for one spouse that reduces the other spouse's share?

Plain-English summary

The opinion addressed a lawyer who jointly represented a husband and wife in planning their estates and drafting their wills. Their plan left everything to the survivor except a small trust for their minor children funded at the husband's death. The husband, terminally ill and expected to die first, later asked the lawyer to draft a codicil increasing the children's trust and reducing the residuary bequest to the wife, and asked the lawyer to do so without the wife's knowledge or consent. The question was whether the lawyer could prepare the codicil without informing the wife.

The opinion concluded that the lawyer could prepare the codicil without informing the wife only if two conditions were met: there was no clearly expressed intent, at the time the original estate planning documents were prepared, that neither spouse would change the plan without informing the other; and the provisions of the codicil are consistent with the wife's best interests. It applied Rule 5.1(a). The opinion concluded that the inquiry presented insufficient facts to determine whether there was an agreement not to change the plan or whether the codicil was consistent with the wife's interests.

On a separate, unrelated question, where a husband meeting with the lawyer about his own estate plan wished to minimize his second wife's share because he believed she suffered from dementia and had her own assets, the opinion concluded that the lawyer could advise him how to structure the plan to preclude the wife from dissenting, because Rule 7.1(a)(1) permits a lawyer to seek the lawful objectives of a client through reasonably available means permitted by law and the Rules.

Currency note

This opinion was issued in 1996, before the North Carolina State Bar's adoption of the 2003 revisions to the Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a lawyer who represented both spouses change one spouse's will in secret?

A: Only narrowly. The opinion concluded that the lawyer may prepare the husband's codicil without informing the wife only if there was no clearly expressed agreement against unilateral changes and the codicil is consistent with the wife's best interests.

Q: Why couldn't the committee give a yes-or-no answer?

A: The opinion concluded that the inquiry presented insufficient facts to determine whether the couple had agreed not to change the plan without notice or whether the codicil served the wife's interests.

Q: Can a lawyer help a husband structure his estate to limit his wife's share?

A: In the separate unrelated scenario, yes. The opinion concluded that under Rule 7.1(a)(1) a lawyer may pursue a client's lawful objectives, including structuring the plan to preclude the wife from dissenting from the will.

Background and rules framework

The opinion applied North Carolina's then-current conflict rule, Rule 5.1(a) (corresponding to Model Rule 1.7), to the joint representation of spouses, where one client's request implicates the other client's interests and the lawyer's confidentiality duties (Model Rule 1.6). The separate scenario applied Rule 7.1(a)(1) on pursuing a client's lawful objectives (corresponding to Model Rule 1.2).

Citations and references

Rules of Professional Conduct:

• MR 1.7 (conflict of interest; joint representation)
• MR 1.6 (confidentiality of information)
• MR 1.2 (scope of representation; lawful objectives)
• North Carolina Rule 5.1(a) and Rule 7.1(a)(1)

See also

• NC Ethics Op. RPC 245: release of a joint file to a former co-party
• NC Ethics Op. RPC 246: confidentiality owed to a prospective client

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/rpc-229/

Original opinion text

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

Inquiry #1:

Husband and Wife asked Attorney to represent them in planning the disposition of their estates and in the preparation of their wills. Both spouses agreed that all of the property of the first to die would be left to the surviving spouse with the exception of a small trust that would be established at Husband's death for the benefit of the couple's minor children. The trust would be funded prior to the distribution of the residuary estate to Wife. Husband has a terminal illness and the couple anticipate that Husband will be the first to die. The wills were drafted and signed. Husband subsequently called Attorney and expressed concern about Wife's ability to manage her funds. Husband asked Attorney to draft a codicil to his will increasing the amount put in trust for the minor children, thereby reducing the residuary bequest to Wife. May Attorney A draft the codicil without the knowledge and consent of Wife?

Opinion #1:

Attorney may only prepare the codicil without informing Wife if there was no clearly expressed intent by Husband and Wife, at the time of the preparation of the original estate planning documents, that neither spouse would change the estate plan without informing the other spouse and the provisions of the codicil are consistent with the best interests of Wife. See Rule 5.1(a). There are insufficient facts presented in this inquiry to determine whether there was an agreement not to change the estate plan or to determine whether the codicil is consistent with Wife's interests.

Inquiry #2:

In an entirely unrelated matter, Husband X meets with Attorney regarding his personal estate plan. Husband X wants to minimize Wife X's share of his estate because he believes she suffers from dementia. Also, it is his second marriage, of which there are no children, and Wife X has her own assets. May Attorney advise Husband on how to structure his estate plan to preclude Wife from dissenting from his will?

Opinion #2:

Yes, Rule 7.1(a)(1) permits a lawyer to seek the lawful objectives of a client through reasonably available means permitted by law and the Rules of Professional Conduct.