Can the lawyer who drafted a will notify the client when estate-tax or testamentary law changes might defeat the will?

Plain-English summary

The opinion (rendered June 2, 1977, and amended April 6, 2013) addressed whether an attorney who has written a will may inform the testator of changes in estate-tax or testamentary laws and regulations where those changes could alter the legality or taxable nature of the estate and defeat the testator's original intentions.

The opinion applied MRPC 1.1 (competent representation) and MRPC 1.2 (abiding by the client's objectives and consulting about the means). It explained that drafting a will is a single act of representation, and the opinion places no obligation on an attorney to examine copies of existing wills remaining in the office and notify testators of changes in the law.

The opinion concluded that an attorney may, with propriety, choose to notify the testator of changes in testamentary and estate-tax laws and regulations. The notification should only state that the laws or regulations have been changed, state the changes if desired, and recommend that the existing will be reviewed by an attorney. The notification should not direct the testator to any particular attorney.

In practice

Under this opinion, a Mississippi lawyer who drafted a will is not required to track later law changes and alert past clients, but may choose to send a notice that the relevant laws have changed and suggest the will be reviewed. The opinion holds that such a notice may not steer the testator to a particular attorney.

Common questions

Q: Must a lawyer who drafted a will notify the client when the law later changes?

A: No. The opinion concluded that drafting a will is a single act of representation and imposes no obligation to examine old wills and notify testators of changes in the law.

Q: May the lawyer choose to send such a notice?

A: Yes. The opinion concluded that an attorney may, with propriety, notify the testator that the laws or regulations have changed and recommend that the existing will be reviewed.

Q: What can the notice not do?

A: Per the opinion, the notification should not direct the testator to any particular attorney.

Background and rules framework

The opinion interprets MRPC 1.1 (competence) and MRPC 1.2 (scope of representation and allocation of authority between client and lawyer), corresponding to Model Rules 1.1 and 1.2.

Citations and references

Rules of Professional Conduct (Mississippi; cf. Model Rules):

• MRPC 1.1 (competence) (cf. Model Rule 1.1)
• MRPC 1.2 (scope of representation) (cf. Model Rule 1.2)

See also

• Hawaii Ethics Op. 41: Attorney Web Sites and Other Electronic Advertising
• Mississippi Ethics Op. 48: Firm Name and Letterhead After Dissolution

Source

• Landing page: https://www.msbar.org/ethics-discipline/ethics-opinions/formal-opinions/39/
• Original PDF: https://www.msbar.org/media/1077/et_op_39-amended.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

ETHICS OPINION NO. 39

OF THE MISSISSIPPI BAR

RENDERED June 02, 1977

AMENDED April 06, 2013

ADVERTISING - SOLICITATION - Attorney who drafted will may inform testator of changes in estate tax or other testamentary laws and regulations when such changes may defeat testator's original intentions; however, notice should not direct that the will should be reviewed by any particular attorney.

The Ethics Committee of The Mississippi Bar has been requested to render an opinion regarding the ethical propriety of an attorney who has written a will, to inform the testator of any changes in estate tax or testamentary laws and regulations, where such changes may alter the legality or taxable nature of the estate and in effect defeat the testator's original intentions when the will was drafted..

A will is drafted for the purpose of carrying out the intentions of the testator in light of existing testamentary laws, and in many cases, estate tax laws. If these laws and/or regulations are changed, the result may be that the testator's intentions may be defeated.

Rule 1.1 of the Mississippi Rules of Professional Conduct (MRPC) provides that a lawyer should represent a client competently. Rule 1.2, MRPC, provides that a lawyer should abide by the client's decisions concerning the objectives of representation and shall consult with the client as to the means by which they are to be pursued. The drafting of a will is a single act of representation and this opinion places no obligation on an attorney to examine copies of existing wills which may remain in his office, and notify the testator of any change in laws or regulations. However, the committee is of the opinion that an attorney can with propriety choose to notify the testator of any changes in testamentary and estate tax laws and regulations. The notification should only state that the laws and/or regulations involved have been changed, stating the changes if desired, and recommending that the existing will be reviewed by an attorney. The notification should not direct the testator to any particular attorney.