Inquiry is made concerning the propriety of representing the primary
beneficiary of a will, to uphold the validity of the will on the issue of
testamentary capacity, after having witnessed the execution of the will,
along with his secretary, and concurrently executing an affidavit that the
testator was under no constraint or undue influence.
On March 9, 1983 the inquiring attorney witnessed the execution of a will by the testator.
The will was prepared by the inquiring attorney's associate. The other attesting witness
was the secretary of the inquiring attorney and the associate. Concurrently with the
execution of the will, the inquiring attorney and secretary executed an affidavit attesting
that the testator was under no constraint or undue influence.
Eight days later, on March 17, 1983, the will was admitted to probate in common form
pursuant to the petition of the inquiring attorney's associate, who was nominated in the
will and qualified as executor. The affidavit was used in probating the will.
The beneficiaries under the alleged will are the former wife of the decedent, two persons
not related to decedent, and the decedent's minor daughter and only child.
The inquiring attorney states that he has no intention of offering his testimony in the will
contest proceeding and further states that he has no opinion as to the competency of the
decedent and does not recall his appearance, demeanor or other characteristics at the time
of the execution of the will which is the only time he ever saw the decedent.
Obviously, the secretary will be a material witness in the will contest case on the issue of
mental competence and testamentary capacity of the decedent. It is also obvious that the
inquiring attorney ought to be a witness, even though his testimony may be inconclusive.
Disciplinary Rule 5-101(B) of the Code of Professional Responsibility provides:
A lawyer shall not accept employment in ... pending
litigation if he knows or it is obvious that he or a lawyer in
his firm ought to be called as a witness ....
Tennessee Formal Ethics Opinion 81-F-10 held that a lawyer should decline
representation if it is contemplated that either he or his
83-F-54 Page 2
secretary would appear as a witness.
It does not appear that any of the exceptions of DR 5-101(B) apply. Therefore, it is
improper, in this instance, for the attorney to represent the primary beneficiary of the
alleged will to uphold the validity of the will on the issue of testamentary capacity.
This 29th day of August , 1983.
Edwin C. Townsend
W. J. Flippin
Henry H. Hancock
APPROVED AND ADOPTED BY THE BOARD