Can a lawyer who is probating an old will also testify to prove that the signatures on it are genuine?

Plain-English summary

A lawyer was employed to admit an old will to probate and record it. Both witnesses to the will were long deceased, and the lawyer was unable to find anyone other than himself who could identify the signatures of the testator or the witnesses. He was unaware of any contest to the will and asked whether he could act as a witness to prove the genuineness of the signatures through his own testimony.

The opinion applies Rule 3.7(a)(1), under which a lawyer shall not act as an advocate at a trial in which the lawyer is likely to be a necessary witness, except where the testimony relates to an uncontested issue. Because the lawyer did not expect a contest as to the genuineness of the signatures, the opinion concludes he should be allowed to prove their genuineness, and that his involvement in the probate would not be called into question so long as the subject of his testimony is the uncontested matters discussed.

In practice

Under this opinion, a lawyer handling the probate of a will may also testify to authenticate the signatures where no contest is expected, because Rule 3.7(a)(1) exempts testimony on an uncontested issue from the advocate-witness prohibition. The opinion ties the result to the uncontested character of the signature question; it does not reach the situation of a contested will.

Common questions

Q: Can the lawyer probating a will also be the witness who proves the signatures?

A: Yes, where the genuineness of the signatures is uncontested. The opinion holds Rule 3.7(a)(1) permits the lawyer to testify on that uncontested issue.

Q: What if no one else is available to identify the signatures?

A: That is the situation in the opinion. With both attesting witnesses deceased and only the lawyer able to identify the signatures, the opinion allows the lawyer to provide that testimony because it concerns an uncontested matter.

Q: Does this hold if the will is contested?

A: The opinion limits its conclusion to uncontested matters; it says the lawyer's involvement is acceptable "so long as the subject of his testimony is on the uncontested matters herein discussed."

Background and rules framework

The opinion applies Mississippi Rule of Professional Conduct 3.7(a)(1) (lawyer as witness; Model Rule 3.7), which bars a lawyer from acting as an advocate at a trial where the lawyer is likely to be a necessary witness, subject to an exception for testimony relating to an uncontested issue. The opinion treats the genuineness of the will signatures as such an uncontested issue on the facts presented.

Citations and references

Rules of Professional Conduct:

• MR 3.7 / MS RPC 3.7(a)(1) (lawyer as witness; exception for uncontested issues)

See also

• MS Bar Ethics Op. 79: Defending a Co-Defendant Arrested Through Another Client's Cooperation
• MS Bar Ethics Op. 94: Volunteering Will Advice

Source

• Landing page: https://www.msbar.org/ethics-discipline/ethics-opinions/formal-opinions/76/
• Original PDF: https://www.msbar.org/media/1090/et_op_76-amended.pdf

Original opinion text

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

ETHICS OPINION NO. 76

OF THE MISSISSIPPI BAR

RENDERED September 17, 1982

AMENDED April 06, 2013

LAWYER AS A WITNESS - When one can act as both a lawyer and witness.

The following question has been proposed to the Committee for its consideration:

Attorney "A" has been employed to admit to probate and record a will that was executed many years ago. Both witnesses to the will are long since deceased. The attorney is unable to find anyone who can identify signatures of the Testator or the witnesses, except himself. He is unaware of any contest to be made to the will. May the attorney act as a witness to prove the genuineness of these signatures by his own testimony?

Rule 3.7(a)(1) of the Mississippi Rules of Professional Conduct (MRPC) provides that s lawyer shall not act as an advocate at a trial in which the lawyer is likely to be a necessary witness except where the testimony related to an uncontested issue.

In view of the fact that Attorney "A" does not expect a contest as to the genuineness of the signatures of the Testator and the witnesses, it is the opinion of Committee that he should be allowed to prove the genuineness of the signatures on the will, and his involvement in the probate of the will would not be questionable so long as the subject of his testimony is on the uncontested matters herein discussed.