WISBAR 1980

Can a lawyer draft a will for a law partner's spouse that leaves the partner the entire estate, excluding the children?

Short answer: The opinion concluded that a lawyer may not draft a will for a partner's spouse in which the partner would receive a larger share of the estate than he or she would take by intestacy. Because the partner could not draft such a will under Wisconsin Supreme Court precedent, the disqualification extends to every member of the partner's firm.

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This page answers the general question as of 1980. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.

Disclaimer: Advisory only. Not binding precedent.

About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page as a PDF) is the authoritative source for any reliance.

View original ethics opinion (PDF)

Plain-English summary

Opinion E-80-1 asked whether one member of a law firm (Lawyer A) could draw a will for the spouse of another member of that firm (Lawyer B) where the will distributed the spouse's entire estate to Lawyer B, to the exclusion of their children.

The committee relied on the Wisconsin Supreme Court decisions in State v. Collentine, 35 Wis. 2d 325, State v. Beaudry, 53 Wis. 2d 148, and State v. Gulbankian, 54 Wis. 2d 599, which held that a lawyer may be the scrivener of a will in which he is a beneficiary only when he stands to the testator as the natural object of the testator's bounty and receives no more under the will than he would by law in the absence of a will. Under any other circumstance in which the lawyer-draftsman is a beneficiary, the Court would treat the preparation of the will as unprofessional conduct. The committee concluded that Lawyer B accordingly could not draw a will for his or her spouse leaving Lawyer B the entire estate to the exclusion of the children.

The committee then found that the disqualification reaches the whole firm. Reading Beaudry at page 154, it concluded that a member of Lawyer B's firm would not meet the test of an independent legal attorney, and it cited footnote 2 to ABA Formal Opinion 342 (1975): the disqualification of one lawyer in an organization generally constitutes the disqualification of all affiliated lawyers. The committee reaffirmed its earlier Informal Opinion 2-68, which had reached the same result, that a partner or associate of the lawyer-beneficiary is foreclosed from drafting such a will. It concluded that Lawyer A may not draw a will for Lawyer B's spouse in those cases in which Lawyer B would receive a larger share of the estate than he or she would if the spouse died intestate.

Currency note

This opinion was issued in 1980, before Wisconsin's July 1, 2007 adoption of the revised Rules of Professional Conduct for Attorneys (the state's Ethics 2000 update), and it applies the standard drawn from the cited Wisconsin Supreme Court decisions. A lawyer's preparation of an instrument giving the lawyer (or a person related to the lawyer) a substantial gift is now addressed by SCR 20:1.8(c) / Model Rule 1.8(c), and imputation by SCR 20:1.10 / Model Rule 1.10. 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 draft a will leaving a substantial gift to the lawyer or the lawyer's spouse?

A: Under the cited Wisconsin Supreme Court decisions, the committee said a lawyer may be the scrivener of a will in which he is a beneficiary only when he is the natural object of the testator's bounty and receives no more than he would by intestacy; otherwise the drafting is unprofessional conduct.

Q: Can a different lawyer in the same firm draft the will instead?

A: No. The committee concluded that the disqualification extends to every member of the firm, so a partner or associate of the lawyer-beneficiary is also foreclosed from drafting the will.

Q: When is such a will permissible?

A: The committee tied the limit to the intestate share: Lawyer A may not draw the will in any case in which Lawyer B would receive a larger share than Lawyer B would take if the spouse died intestate.

Background and rules framework

The opinion applied the Wisconsin Supreme Court's rule on lawyers drafting wills in which they are beneficiaries (Collentine, Beaudry, Gulbankian) together with firm-wide imputation drawn from ABA Formal Opinion 342. The current counterparts are SCR 20:1.8(c) / Model Rule 1.8(c) (instruments giving the lawyer a substantial gift) and SCR 20:1.10 / Model Rule 1.10 (imputation of conflicts).

Citations and references

Rules of Professional Conduct:

Model Rule 1.8(c) / SCR 20:1.8(c) (preparing an instrument giving the lawyer a substantial gift)
Model Rule 1.10 / SCR 20:1.10 (imputation of conflicts)

Cases:

State v. Collentine, 35 Wis. 2d 325, lawyer as scrivener-beneficiary of a will
State v. Beaudry, 53 Wis. 2d 148, independent-attorney requirement
State v. Gulbankian, 54 Wis. 2d 599, lawyer-draftsman as beneficiary

Other opinions cited:

ABA Formal Opinion 342 (1975), footnote 2: disqualification of one lawyer disqualifies all affiliated lawyers
Wisconsin Informal Opinion 2-68: partner or associate foreclosed from drafting such a will

Source

Landing page: https://www.wisbar.org/formembers/ethics/pages/formal-opinions.aspx
Original PDF: https://www.wisbar.org/formembers/ethics/Ethics%20Opinions/E-80-1.pdf

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