Could the lawyer who drafted a will, witnessed it, and was named executor both testify about its execution and the testator's capacity and conduct the contested probate?

Plain-English summary

A testator, now deceased, had given his attorney the terms of a will and instructions to draw it; the will was drawn and executed in the attorney's office, and the attorney was one of three subscribing witnesses and was named executor. The widow, devised a life estate terminable on remarriage with a remainder to the testator's "heirs of the blood," offered the will for probate, and a child by a former marriage contested it. The question was whether the attorney could properly testify about the will's preparation, execution, and the testator's capacity while also having charge of the probate and opposing the contest.

The Board answered in the negative. It quoted Rule 21: when a lawyer is a witness for his client, except as to merely formal matters such as the attestation or custody of an instrument, "he should leave the trial of the case to other counsel," and except when essential to the ends of justice a lawyer should avoid testifying for his client. The Board read the "essential to the ends of justice" exception to cover an unforeseen exigency arising after a trial begins, where denying the lawyer's testimony would work a hardship on the client, and even then the lawyer should withdraw entirely if circumstances permit, since no lawyer with a just conception of his position would willingly unite the roles of counsel and witness. Here the lawyer knew of the need for his testimony in advance of trial. Quoting Ferraro v. Taylor, the Board added that the practice of attorneys supplying the controlling testimony for their client on their own oaths is not to be condoned. It observed in passing that lawyers who draw wills should not act as subscribing witnesses, especially if the lawyer is named in the will in any capacity.

Currency note

This opinion was issued in 1936, decades before Oklahoma replaced its original Rules of Professional Conduct (patterned on the ABA Canons of Professional Ethics) with the Oklahoma Rules of Professional Conduct (adopted 1988) and the later Ethics 2000 revisions. The rule cited here, Rule 21, belongs to that superseded canon-era code; the modern lawyer-as-witness rule takes a different and more detailed form. 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 Treat this page as historical context, not current guidance.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: Could a lawyer testify about a will he drafted and still try the probate?

A: Not under this opinion, where the testimony went beyond formal matters. The Board held Rule 21 required him to leave the trial to other counsel.

Q: Did the rule's "ends of justice" exception apply?

A: No. The Board read that exception to cover an unforeseen exigency arising during trial; here the lawyer knew his testimony would be needed in advance.

Q: Should a lawyer who drafts a will serve as a witness to it?

A: The opinion observed that lawyers who draw wills should not act as subscribing witnesses, especially if the lawyer is named in the will in any capacity.

Background and rules framework

The opinion applied Rule 21 of the canon-era Oklahoma Rules of Professional Conduct, governing a lawyer who is a witness for his client, drawn from the ABA Canons of Professional Ethics, and cited Minnesota authority. It predates the Model Rules and made no Model Rule citation.

Citations and references

Rules of Professional Conduct:

• Rule 21 (1929 Oklahoma Rules of Professional Conduct): when a lawyer is a witness for his client except as to merely formal matters, he should leave the trial to other counsel.

Cases:

• Ferraro v. Taylor, 197 Minn. 5, 265 N.W. 829 (Minn. 1936): condemning the practice of attorneys furnishing the controlling testimony for their client on their own oaths.

See also

• Okla. Bar Ethics Op. 73: Will drafter representing a claimant against the will

Source

• Landing page: https://www.okbar.org/ethics/ethics-opinion-no-114/

Original opinion text

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

Adopted September 25, 1936

The Board is in receipt of the following inquiry:

"A party, now deceased, gave to his attorney the terms of a will he wished to make with instructions to draw it. The will was drawn, and executed in the office of the attorney who drew it. The attorney was one of the three subscribing witnesses thereto. The will has been offered for probate by the widow, who was devised a life estate, terminable upon her remarriage, and provided for remainder over to the 'heirs of the blood' of the testator. A child by a former marriage has filed a contest against the probate of the will. Query: May the attorney who drew the will, who was named executor therein, and was one of the three subscribing witnesses, with propriety, testify in relation to the preparation and execution of the will, and capacity of the testator, and at the same time have charge of the proceedings for probate and oppose the contest?"

In response:

The Board is of the opinion that the inquiry must be answered in the negative.

Rule 21 of the Rules of Professional Conduct provides as follows:

"When a lawyer is a witness for his client, except as to merely formal matters, such as the attestation or custody of an instrument and the like, he should leave the trial of the case to other counsel. Except when essential to the ends of justice, a lawyer should avoid testifying in court in behalf of his client."

The Board is of the opinion that the exception stated in the last sentence of the rule refers to an exigency arising subsequent to the commencement of a trial, not readily foreseen, where it would constitute a hardship upon a client to deny the testimony of the member of the bar; but even then the member of the bar should entirely withdraw from the case if the circumstances will permit, upon the theory that no member of the bar having a just conception of his true and proper position will willingly unite the character of counsel and witness in the same case.

The language of the Supreme Court of Minnesota in Ferraro v. Taylor, 197 Minn. 5, 265 N.W. 829 is apposite:

"The practice of attorneys of furnishing from their own lips and on their own oaths the controlling testimony for their client is one not to be condoned by judicial silence. … The good name and deservedly high standing of the … bar requires that the practice be stopped, for nothing short of actual corruption can more surely discredit the profession."

In the case presented by the inquiry it appears that the member of the bar knew of the necessity or desirability of his testimony in advance of the trial.

In passing, it may be said that the facts presented in the inquiry indicate that members of the bar who draw wills should not act as subscribing witnesses. Especially is that true if the member of the bar is named in the will in any capacity.