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 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