Can the lawyer for an estate's executor tell the surviving spouse to get their own lawyer about electing against the will?

Plain-English summary

A testatrix left one-third of her estate to her surviving husband, who was apparently entitled to elect a one-half share against the will and had expressed dissatisfaction with the bequest. The committee was asked whether the executor's lawyer could advise the husband to obtain independent counsel about his right of election. It answered yes.

The committee began with the general practice that the executor's lawyer is usually not required to answer beneficiaries' inquiries but ordinarily may provide routine, non-privileged information about the estate's content or administration as a matter of professional courtesy (DR 4-101(A)). Where the inquiry instead calls for a statement of law or legal advice, different considerations apply: the lawyer's duty of undivided loyalty to the executor and the prohibition on advising potentially adverse parties (DR 7-101(A), DR 7-104(A)(2), EC 5-1, EC 7-18) may bar the lawyer from answering.

Applying those principles, the committee said the lawyer must avoid any position antagonistic to the estate or inconsistent with the executor's duty to carry out the will, so it would be improper to advise the surviving spouse that he is entitled to elect; whether the right exists is a conclusion of law the executor's lawyer might foreseeably have to contest. At the same time, remaining wholly silent in the face of the spouse's dissatisfaction could mislead, and earlier authority had recognized a privilege and duty to inform a widow of her probable power of election (N.Y. City 373 (1936); N.Y. City 191 (1931)).

Striking a balance, the committee concluded that the executor's lawyer cannot advise the surviving spouse to exercise a right of election but can advise him to seek independent counsel, and, to make the need for counsel clear, may inform him as a matter of professional privilege of the possible existence of a right to elect a statutory share against the will. The question was answered in the affirmative.

Currency note

This opinion was issued in 1977, before New York replaced the Code of Professional Responsibility with the Rules of Professional Conduct in 2009 (dealing with an unrepresented person is now governed by Rule 4.3, loyalty and conflicts by Rule 1.7, and confidentiality by Rule 1.6). Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can the executor's lawyer tell a beneficiary they have a right to elect against the will?

A: Under this opinion, no. The committee held that whether the right exists is a conclusion of law the executor's lawyer might have to contest, so advising the spouse to exercise it would be improper.

Q: What can the executor's lawyer do instead?

A: Advise the surviving spouse to obtain independent counsel, and, to make the need clear, inform him that a right to elect a statutory share may exist. The committee treated that limited disclosure as a professional privilege.

Q: Can the executor's lawyer answer a beneficiary's questions at all?

A: The committee said routine, non-privileged information about the estate's content or administration is usually proper and often advisable, but inquiries calling for legal advice may be barred by the lawyer's loyalty to the executor and the rule against advising adverse parties.

Background and rules framework

The opinion applies DR 7-104(A)(2) and EC 7-18 (no advice to an adverse unrepresented person beyond securing counsel), DR 7-101(A) and EC 5-1 (zealous, undivided loyalty to the client), and DR 4-101(A) (confidences). The current Model Rule analogues are Rule 4.3 (unrepresented persons), Rule 1.7 (conflicts and loyalty), and Rule 1.6 (confidentiality).

Citations and references

Rules of Professional Conduct:

• MR 4.3 (dealing with an unrepresented person)
• MR 1.7 (conflict of interest: current clients)
• MR 1.6 (confidentiality of information)
• NY EC 5-1, EC 7-18; DR 4-101(A), DR 7-101(A), DR 7-104(A)(2)

Other opinions cited:

• N.Y. City 373 (1936): privilege and duty to inform a widow of her probable power of election
• N.Y. City 191 (1931): an executor's lawyer's information to beneficiaries

See also

• NY State Bar Op. 478: Negotiating directly with an unrepresented spouse in a matrimonial matter
• NY State Bar Op. 481: When a will's drafter may serve as executor

Source

• Landing page: https://nysba.org/opinion-477/