Can a lawyer draft a will for a client that names the lawyer as a beneficiary or executor, where the client wants the lawyer to inherit?

Plain-English summary

This opinion arose from a disciplinary matter submitted on a stipulated record. The respondent, a lawyer of 17 years, drafted a will in January 1980 for Ms. A, a 67-year-old blind woman he had known for about 34 years and for whom he had done prior legal work. At her instruction, the will devised valuable surface and mineral interests in roughly 400 acres to the respondent and named him Executor. The respondent did not discuss the propriety of naming himself beneficiary and Executor, did not require Ms. A to discuss the devise with other counsel, and did not suggest she have another lawyer prepare the will. Ms. A died a few months later; her estate was appraised at about $53,000, with the real estate devised to the respondent appraised at $22,400 (stipulated to be worth at least $18,750). Her brother filed the complaint.

The Committee restated the principle that an attorney must represent his client with the strictest fidelity and utmost good faith, and that these duties apply with particular force to personal transactions between attorney and client. Such dealings are closely scrutinized, to the point that a rebuttable presumption of fraud or undue influence attaches where a lawyer is designated a principal beneficiary of a will he drafted. Following the rule that a lawyer may not take personal advantage of a client without first advising the client to seek independent advice, the Committee noted the general holding (citing Re Davis' Will) that where a testator wishes to make the attorney or the attorney's immediate family a beneficiary, the will should be drawn by another lawyer chosen by the client.

The Committee identified five problems with an attorney-draftsman who is also a beneficiary: he (1) exposes himself to a conflict of interest, (2) renders himself incompetent to testify about a transaction with the deceased, (3) possibly places the will in jeopardy if contested, (4) causes possible harm to other beneficiaries, and (5) undermines public trust and confidence in the integrity of the profession. It concluded that naming oneself beneficiary in a will one prepares is highly imprudent, if not totally improper, even absent fraud or undue influence. Whether it warrants discipline depends on the facts; the Committee noted other jurisdictions had disbarred, suspended, or reprimanded lawyers in comparable situations (citing the Iowa Randall and Behnke decisions and the Wisconsin Re Gonyo matter).

Here, the Committee found no evidence of overreaching, fraud, or undue influence, and that the testatrix appeared to have proposed the devise so her relatives would never get her property. But it held the respondent was remiss and guilty of an impropriety in not advising and insisting that another attorney draft the will, or at least that Ms. A seek independent advice about the devise and his appointment as Executor. Under the facts, it privately reprimanded him under DR 5-101. It advised State Bar members that the Committee frowns upon a lawyer drafting an instrument in which he is grantee or beneficiary, and that where a testator insists on naming the attorney-draftsman, the attorney should insist the will be prepared by another lawyer or at least advise the client to seek independent advice about the devise and the naming of the attorney as Executor.

Currency note

This opinion was issued in 1983, before West Virginia replaced its Code of Professional Responsibility (the DR provisions cited here) with the Rules of Professional Conduct, effective January 1, 1989, and before later rule revisions, including the comprehensive 2015 amendments. 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: Could a lawyer draft a will that left property to the lawyer?

A: The opinion concluded it is highly imprudent, if not totally improper, for a lawyer to name himself beneficiary in a will he prepares, even without fraud or undue influence; the lawyer should have another attorney draft it or at least advise the client to seek independent advice.

Q: Did it matter that the client herself wanted the lawyer to inherit and there was no fraud?

A: It mitigated but did not excuse the conduct. The Committee found no overreaching, fraud, or undue influence and accepted that the testatrix wanted the devise so her relatives would not inherit, yet still found the respondent guilty of an impropriety for not insisting on independent counsel, and reprimanded him.

Q: What discipline resulted?

A: A private reprimand under DR 5-101, the Committee finding it appropriate on these facts. It noted other jurisdictions had imposed disbarment, suspension, or reprimand for lawyers who named themselves beneficiaries of wills they drafted.

Background and rules framework

The opinion applied DR 5-101 of the Code of Professional Responsibility, which addresses a lawyer's refusal of employment when his own interests may impair his independent professional judgment. It framed the will-drafting beneficiary problem through the fiduciary duties of fidelity and good faith and the presumption of fraud or undue influence that courts attach when a lawyer is a principal beneficiary of a will he prepared, drawing on out-of-state authority for the proposition that such a will should be drawn by independent counsel.

Citations and references

Rules of Professional Conduct (Code of Professional Responsibility, as cited):

• DR 5-101 (refusing employment when the interests of the lawyer may impair his independent professional judgment)

Cases:

• In re Davis' Will, 14 N.J. 166, 101 A.2d 521, a will benefiting the attorney should be drawn by another lawyer chosen by the client
• Committee on Professional Ethics & Conduct of the Iowa State Bar v. Randall, 285 N.W.2d 161 (Iowa 1979), attorney sole beneficiary of a will he drafted disbarred absent exceptional circumstances
• Committee on Professional Ethics & Conduct of the Iowa State Bar v. Behnke, 276 N.W.2d 838 (Iowa 1979), attorney named contingent beneficiary suspended three years
• In re Gonyo, 73 Wis. 2d 624, 245 N.W.2d 893, attorney named residuary legatee reprimanded

See also

• WVSB Ethics Op. 84-5: Conflicts of prosecutors in the same private law firm
• WVSB Ethics Op. 84-4: Refusal to file a final divorce decree until fees are paid

Source

• Landing page: https://wvodc.org/Legal-Ethics-Opinion
• Original PDF: https://storage.googleapis.com/msgsndr/Rgd68xOkcVdteTsBkf6O/media/66a7ea7e3c9fe0702a45e80d.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

L.E.I. 83-3

(January 28, 1983 -- L.E.C. 81-18)

GENERALLY A LAWYER MAY NOT ETHICALLY PREPARE A WILL IN WHICH THE LAWYER IS NAMED AS A BENEFICIARY OR GRANTEE

This matter, having been set for hearing, was submitted to the hearing subcommittee upon stipulated record.

The respondent attorney is a member of The West Virginia State Bar and has been actively engaged in the practice of law for 17 years. In January, 1980, Ms. A, a 67 year old blind woman, employed the respondent to draft her will. The respondent and Ms. A were personally acquainted and had known each other for approximately 34 years, the respondent having resided as a child in the same community as Ms. A. The respondent had performed legal services for Ms. A on several occasions prior to the preparation of the will in question.

During January, 1980, the respondent prepared a will for Ms. A. Pursuant to her instructions, the will devised valuable surface and mineral interests in approximately 400 acres of land in several parcels to the respondent. The will also named the respondent as Executor. The will was executed at the respondent's office in the presence of the respondent, his wife, and two attesting witnesses who had brought Ms. A to the respondent's office. Before having Ms. A execute the will, the respondent spoke with a fellow member of his local Bar about the practical problems attendant upon the execution of a will by a blind person, but at no time did he discuss the propriety of naming himself as beneficiary and Executor in such a will.

Furthermore, at no time did the respondent require Ms. A to discuss her will and the proposed devise to him with other counsel. Nor did he insist or suggest that she should have other counsel prepare her will and advise her with regard to her wish to devise a substantial amount of her property to him.

Before Ms. A executed the will the respondent read to her the entire will, item by item, and asked her from time to time if the portion of the will just read was agreeable, to which she replied affirmatively in each case. There appears to have been no discussion of the devise of the real estate to the respondent.

Ms. A appears to have had no relatives other than her brother and some half-brothers and sisters, for whom she exhibited an intense dislike. She remarked on several occasions that if she became ill or died, her brother was not to be called. She told the respondent she wanted him to have her real property so her relatives would never get it.

Ms. A died a few months after the will was executed, and the respondent offered the will for probate and was appointed and qualified as Executor thereof.

The appraised value of Ms. A's estate was approximately $53,000.00. The real estate devised to the respondent was appraised at $22,400.00. However, it was stipulated that the real estate devised to the respondent had a value of at least $18,750.00. This complaint was filed by Ms. A's brother.

It is a basic principle of professional conduct that an attorney must faithfully, honestly and consistently represent the interests and protect the rights of his client, and that he is bound to discharge his duties to his client with the strictest fidelity, to observe the highest and utmost good faith, and to inform his client promptly of any known information important to him. These duties apply with particular force to situations where an attorney has personal transactions with a client. Such dealings are closely scrutinized by the courts, to the extent of attaching a rebuttable presumption of fraud or undue influence where a lawyer is designated as one of the principal beneficiaries of a will that he has drafted for a client.

The suspicion which attaches to transactions between attorney and client is best demonstrated by the general holding that an attorney may not permit his private interests to conflict with his client's interest, nor may he take any personal advantage of, or derive benefit from, his client without first advising him to seek independent advice. Following this reasoning, it has been held that ordinary prudence requires that, where a testator wishes to make an attorney or a member of the latter's immediate family a beneficiary under his will, the will should be drawn by another lawyer chosen by the client. Re Davis' Will, 14 N.J.L. 166, 101 A.2d 521.

Where a will is involved, the attorney draftsman who is also a beneficiary thereof (1) exposes himself to a conflict of interest; (2) renders himself incompetent to testify because of a transaction with the deceased; (3) possibly places the will in jeopardy if it is contested; (4) causes possible harm to other beneficiaries; and (5) undermines the public trust and confidence in the integrity of the legal profession.

This Committee believes that it is highly imprudent, if not totally improper, for an attorney to name himself as beneficiary in a will which he has prepared for a client. This is true even in the absence of fraud or undue influence.

Under what circumstances an attorney exposes himself to disciplinary action based upon a charge of unprofessional conduct as a result of drafting a will in which he is named as beneficiary depends upon the facts and circumstances of a given case.

An attorney who drafted a will for a client in which the attorney was sole beneficiary, absent proof of exceptional circumstances to excuse such conduct, was held to be guilty of unethical conduct and was disbarred. Committee on Professional Ethics & Conduct of the Iowa State Bar v. Randall, 285 N.W.2d 161 (Iowa 1979). Likewise, an attorney who named himself as contingent beneficiary in a will drafted for a client was suspended for a period of three years without reinstatement. Committee on Professional Ethics & Conduct of the Iowa State Bar v. Behnke, 276 N.W.2d 838 (Iowa 1979). The drafting of a will for a client in which the attorney was named as residuary legatee was held, in and of itself, to warrant a reprimand. Re Gonyo, 73 Wis. 2d 624, 245 N.W.2d 893.

In this case there is no evidence of overreaching, fraud or undue influence, and the testatrix appears to have proposed the devise of her real estate to the respondent so that "her relatives would never get it." However, the respondent was remiss and guilty of an impropriety in not advising and insisting that the will be drafted by another attorney or that at least Ms. A seek independent advice with respect to the devise to the respondent and the naming of him as Executor of her will. Under the facts and circumstances of this case, the Committee believes that a private reprimand is appropriate and the respondent is therefore privately reprimanded for his conduct. DR 5-101, Code of Professional Responsibility.

Members of the State Bar are advised that this Committee frowns upon the practice of an attorney drafting an instrument in which he is the grantee or a beneficiary.

If a testator insists upon naming the attorney draftsman as a beneficiary in his will, the attorney should insist that the testator have the will prepared by another attorney or at least should advise the client to seek independent advice concerning the proposed devise or bequest and the naming of the attorney as Executor.