OPINION 439
March 1987

Facts

An attorney prepares a will, which is signed by two witnesses, with the attorney acting as notary. The attorney files the will for probate and acts as attorney for said Applicant. A contest of the will is filed, claiming that the will was not executed in accordance with the laws of the State, and that the Testatrix did not have testamentary capacity. A motion is filed to disqualify the attorney who prepared the will and notarized it.

Question

Is the attorney who prepared the will and notarized it disqualified to continue to act as attorney for the Independent Executrix and sole beneficiary under the will?

Opinion

DR 5-101 provides: "A lawyer shall not accept employment in contemplated or pending litigation if he knows or it is obvious that he or a lawyer in his firm ought to be called as a witness." There are certain exceptions to this and one exception is: "If refusal would work a substantial hardship on the client because of the distinctive value of the lawyer or his firm as counsel in the particular case."

At the time the attorney was asked to accept employment in the will contest, he knew that he ought to be called as a witness in the case. The facts stated do not give rise to an exception to this rule.

Disqualification is further imposed, even if it should be held that the attorney's employment in the matter began when he was hired to draw the will rather than at the time when the will contest was contemplated, or that the employment began when the attorney was hired to handle the probate of the will at a time when no contest was contemplated. Under DR 5-102(A), if after an attorney undertakes employment in contemplated or pending litigation it is learned or it is obvious that he or his firm may be called as a witness on behalf of his client, he must withdraw from the case. Not only must the attorney withdraw, but also his firm must withdraw from employment. There are exceptions, but again the facts do not give rise to one of these exceptions.

Opinion 234 faced issues similar to the issues faced here. In that case A's law partner, B, drafted a will, deed and contract for a client. After the death of the client, the instruments were attacked on grounds of fraud, undue influence and material incapacity of the deceased client. It was held that B's testimony would obviously be important in establishing mental capacity and in establishing the circumstances. It was held that it would be improper for the attorney to accept the case knowing that he would be a material witness. Therefore, the attorney was disqualified.

Conclusion

The attorney who prepared the will and notarized it may not continue to act as attorney for the Independent Executrix and sole beneficiary when a contest of the will questions whether the will was executed in accordance with the laws of the State and whether the Testatrix had testamentary capacity.