When a client dies before signing the will the lawyer drafted, must the lawyer turn the unexecuted will over to the estate, or can he withhold it as a confidence?

Plain-English summary

A client asked an attorney to prepare a will, but died before he could execute it. The estate had paid for the will. The executrix under the client's earlier will asked the attorney to deliver the unexecuted will, claiming it was estate property. The committee was asked whether the attorney should deliver the unexecuted will as estate property or decline on the ground that the will was a client confidence.

The controlling rule was DR 2-108(D), which requires a lawyer, on termination of representation, to take reasonable steps to protect the client's interests, including delivering all papers and property to which the client is entitled.

The committee concluded that, consistent with its prior opinions that a client owns the complete contents of his file where no fees are owed (citing LE Op. 1366, 1176, 1171), the file, including the unexecuted will, had to be returned to the deceased client's personal representative.

Currency note

This opinion was issued in 1993, under Virginia's former Code of Professional Responsibility (the disciplinary rules it cites), before the Virginia State Bar's adoption of the Rules of Professional Conduct effective January 1, 2000. As the opinion's committee note observes, Rule 1.16(e) now governs a lawyer's duty to provide files to a former client. Treat this page as historical context, not current guidance.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: Does an unsigned will a lawyer drafted belong to the deceased client's estate?

A: Under this 1993 opinion, yes. The committee held that, with no fees owed, the client owned the complete contents of the file, so the unexecuted will had to be returned to the deceased client's personal representative.

Q: Can the lawyer withhold the unexecuted will as a client confidence?

A: No. The committee treated the unexecuted will as part of the client's file that the personal representative was entitled to receive, not as a basis to decline delivery.

Background and rules framework

The opinion interpreted former Virginia DR 2-108(D), which required a lawyer to deliver to the client all papers and property to which the client was entitled upon termination. That file-return duty is now in Virginia Rule 1.16(e), as the committee note states.

Citations and references

Rules of Professional Conduct:

• Former Virginia DR 2-108(D) (Code of Professional Responsibility)
• ABA Model Rule 1.16 (declining or terminating representation; return of the file)

Other opinions cited:

• Virginia LE Op. 1366, 1176, 1171: where no fees are owed, the client owns the complete contents of the file.

See also

• VA LEO 1789: Releasing a Client-File Medical Report
• VA LEO 1790: Releasing a Pre-Sentence Report from the File
• VA LEO 1818: Electronic-Only Client Files

Source

• Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
• Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/1519.pdf

Original opinion text

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

Committee Opinion
May 11, 1993
LEGAL ETHICS OPINION 1519

TERMINATION OF REPRESENTATION:
DELIVERY OF WILL DRAFTED FOR
DECEASED CLIENT.

You have presented a hypothetical situation in which a client requested an attorney to
prepare a will. The attorney prepared the will; however, the client died before he was able
to execute the will. The deceased client's executrix under another will has requested that
the attorney deliver the unexecuted will to the executrix, claiming that the unexecuted
will is the property of the deceased client's estate. The deceased client's estate has paid
for the will.
You have asked the committee to opine whether, under the facts of the inquiry, the
attorney should deliver the unexecuted will to the executrix as property of the estate or
decline to do so on the basis that the will is a client confidence.
The appropriate and controlling Disciplinary Rule related to your inquiry is DR:2108(D) which requires, in pertinent part, that, upon termination of representation, a
lawyer shall take reasonable steps for the continued protection of a client's interests,
including delivering all papers and property to which the client is entitled.
Since the committee has consistently opined that, where no fees are owed, the client
owns the complete contents of his file. See LE Op. 1366, LE Op. 1176, LE Op. 1171.
Therefore, the committee opines that the file, including the unexecuted will, must be
returned to the deceased client's personal representative.
Committee Opinion
May 11, 1993
Legal Ethics Committee Notes. – Rule 1.16(e) governs a lawyer’s duty to provide
files to a former client.