Can a New York lawyer draft a client's will that names the lawyer as both a co-executor and a residuary beneficiary?

Plain-English summary

A lawyer who had advised an elderly client and her closely held corporation for three years, and had become a family friend, was asked by the client to draft a will naming the lawyer as a co-executor and as one of four residuary beneficiaries. The committee separated the analysis into three parts. On the lawyer as beneficiary, it explained that New York courts and the Surrogate's Court disfavor bequests to the attorney-draftsman: under SCPA 1408 and the Putnam line of cases, a bequest to the drafting attorney raises an inference of undue influence and can trigger a "Putnam" hearing. EC 5-5 directs a lawyer not to suggest a gift to the lawyer and, other than in exceptional circumstances, to insist that an instrument naming the lawyer beneficially be drawn by another lawyer the client selects. The committee read "exceptional circumstances" to include a close familial relationship or a relatively small gift coupled with a longstanding professional relationship, and concluded the inquiry did not present them. It added that the lawyer must advise the client of the delay and added expense a Putnam hearing can cause, and document the client's informed wishes if the client still insists.

On the lawyer as executor, the committee applied EC 5-6, which directs a lawyer not to consciously influence a client to name the lawyer as executor and to avoid even the appearance of impropriety. It is not improper for a lawyer-draftsman to serve as executor where the nomination is the product of the client's free will; the rule targets the lawyer's overreaching for unsolicited employment. Because the client herself initiated the nomination, accepting the executorship alone would not be improper so long as the lawyer did not consciously influence the designation.

On the combination of all three roles, the committee held that while no per se rule bars a lawyer from receiving a gift or serving as executor under a will the lawyer drafted, only very unusual circumstances could justify a lawyer drafting a will naming the lawyer as both executor and residuary beneficiary, because the personal interests heighten the conflict and the appearance of impropriety. Under DR 5-101(A), such employment is permissible only with client consent after full disclosure and only where it is obvious the lawyer can still adequately represent the client; the obviousness test can be met only in limited circumstances, such as a close family relationship or a bequest that is small or in lieu of fees and commissions. Finding none present, the committee concluded it would be improper for this lawyer to draft the will giving the lawyer a substantial residuary interest and naming the lawyer co-executor.

Currency note

This opinion was issued in 1990, under New York's former Code of Professional Responsibility, which New York replaced with the Rules of Professional Conduct in 2009. New York's Rule 1.8(c) now addresses lawyer-prepared instruments giving a substantial gift to the lawyer more strictly than the precatory EC 5-5 discussed here. 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 a New York lawyer draft a will that leaves the lawyer a bequest?

A: Only in exceptional circumstances. The committee said EC 5-5 directs the lawyer to have the instrument drawn by another lawyer the client selects, except where exceptional circumstances exist, such as a close family relationship or a small bequest with a longstanding professional relationship.

Q: Can the lawyer-draftsman serve as the client's executor?

A: Yes, if the client freely chose the lawyer. The committee held that under EC 5-6 it is not improper for a lawyer-draftsman to serve as executor so long as the lawyer did not consciously influence the designation; here the client herself initiated it.

Q: What about being both executor and beneficiary?

A: The committee held that combining the roles is permissible only in very unusual circumstances, because the personal interest may impair independent judgment under DR 5-101(A); on the facts presented, with a substantial residuary interest and no close family tie, it would be improper.

Q: What is a Putnam hearing?

A: The committee described it as a Surrogate's Court inquiry, named for In re Will of Putnam, into whether a bequest to the attorney-draftsman resulted from undue influence; it can delay and increase the cost of probate, and the lawyer must advise the client of that.

Background and rules framework

The opinion interpreted DR 5-101(A) (a lawyer may not accept or continue employment where the lawyer's own financial, business, property, or personal interests may affect professional judgment, except with consent after full disclosure where the lawyer can obviously still represent the client adequately), informed by the precatory EC 5-5 (gifts to the lawyer) and EC 5-6 (the lawyer named as executor or fiduciary). The closest Model Rule analogues are Rule 1.8(c) (a lawyer shall not solicit a substantial gift or prepare an instrument giving the lawyer a substantial gift, absent a family relationship) and Rule 1.7 (personal-interest conflicts).

Citations and references

Rules of Professional Conduct:

• MR 1.8 (prohibited transactions; gifts to the lawyer)
• MR 1.7 (concurrent conflicts, including personal-interest conflicts)
• NY DR 5-101(A); EC 5-5; EC 5-6

Statutes:

• N.Y. SCPA 1408 (Surrogate's inquiry into a bequest to the drafting attorney)

Cases:

• In re Will of Putnam, 257 N.Y. 140 (1931): inference of undue influence from a bequest to the attorney-draftsman
• In re Weinstock, 40 N.Y.2d 1 (1976): a lawyer's overreaching for a fiduciary appointment

Other opinions cited:

• N.Y. State 481 (1978): the meaning of "consciously influence" a designation as executor
• N.Y. State 595 (1988); N.Y. State 516 (1980): the obviousness test under DR 5-101(A)

See also

• NY State Bar Op. 865: Estate planner serving as attorney for the executor
• NY State Bar Op. 619: Lawyer as financial planner selling insurance to estate clients
• NY State Bar Op. 621: Referring real estate clients to an attorney-owned abstract company

Source

• Landing page: https://nysba.org/opinion-610/