Can a lawyer draft a will for a godmother that names the lawyer as an ultimate beneficiary, and may the lawyer then serve as executor and trustee?

Plain-English summary

A lawyer gave estate-planning advice to her terminally ill godmother and, at the godmother's request, drafted a will creating a residuary trust for the godmother's surviving spouse (the lawyer's godfather), with the lawyer and her sister, both goddaughters, named as the only ultimate beneficiaries of any trust proceeds remaining after the spouse's death. The godmother also asked that the lawyer be named executor and trustee. The lawyer and the godmother were not blood relatives but had a mother-daughter-like relationship for nearly thirty years. After the godmother's death the lawyer began serving as executor and trustee. The committee was asked whether drafting the will violated the Code, and whether serving as executor or trustee was an impermissible conflict.

The controlling rules were DR 5-101(A) (a lawyer must not accept employment where his professional judgment may be affected by his own financial, business, property, or personal interest, absent client consent after full disclosure) and DR 5-104(B) (a lawyer must not prepare an instrument giving the lawyer or a family member a gift, including a testamentary gift, except where the client is a relative of the donee).

The committee concluded that, as used in DR 5-104(B), "relative" does not include a godparent, so the lawyer's preparation of the will naming herself and her sister as ultimate beneficiaries violated that provision (citing LE Op. 1100). It held that whether any remedial action was now needed raised a legal question beyond the committee's purview, noting the testator's death may have mooted it. On the second question, the committee concluded it was not per se improper, at the time of drafting, for the lawyer to serve as executor or trustee, provided the testator consented after full disclosure (citing LE Op. 1515, formerly 1358, which noted that the absence of any pre-existing lawyer-client relationship heightens the potential for an undue-influence finding when a drafting lawyer also serves as fiduciary); if such consent was obtained at drafting, it would not now be per se improper for her to serve.

Currency note

This opinion was issued in 1993, under Virginia's former Code of Professional Responsibility (the disciplinary rules and ethical considerations 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, under current Rule 1.10(a) this disqualification is imputed to the lawyer's entire firm. 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 lawyer draft a will that names the lawyer as a beneficiary?

A: Under this 1993 opinion, no, unless the client is a relative of the lawyer. The committee held that drafting a will naming the lawyer and her sister as ultimate beneficiaries violated DR 5-104(B).

Q: Is a godparent a "relative" for purposes of the gift-instrument rule?

A: No. The committee held that "relative" in DR 5-104(B) does not include a godparent, even one with a decades-long, mother-daughter-like relationship, so the godmother-client exception did not apply.

Q: Could the lawyer still serve as executor and trustee of the will she drafted?

A: The committee held it was not per se improper to serve as executor or trustee, provided the client consented at the time of drafting after full disclosure, citing LE Op. 1515.

Background and rules framework

The opinion interpreted former Virginia DR 5-101(A) (personal-interest conflicts) and DR 5-104(B) (preparing an instrument giving the lawyer or family a gift). The testamentary-gift bar is now in Virginia Rule 1.8(c), the general personal-interest conflict analysis in Rule 1.7, and imputation of the disqualification to the firm in Rule 1.10(a), as the committee note states.

Citations and references

Rules of Professional Conduct:

• Former Virginia DR 5-101(A); DR 5-104(B) (Code of Professional Responsibility)
• ABA Model Rule 1.8(c) (gifts and testamentary instruments); Model Rule 1.7 (personal-interest conflicts); Model Rule 1.10 (imputation)

Other opinions cited:

• Virginia LE Op. 1100: improper for a lawyer to prepare a will naming the lawyer as beneficiary.
• Virginia LE Op. 1515 (formerly 1358): a drafting lawyer may serve as executor or trustee with client consent after full disclosure; absence of a pre-existing relationship heightens undue-influence concerns.

See also

• VA LEO 1538: Prosecutor's Quasi-Judicial Conflict
• VA LEO 1653: Assigning Marital-Property Proceeds to a Fee
• VA LEO 1593: Stock as a Legal Fee

Source

• Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
• Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/1534.pdf

Original opinion text

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

Committee Opinion
August 12, 1993

LEGAL ETHICS OPINION 1534

CONFLICT OF INTEREST - PERSONAL
INTEREST AFFECTING
REPRESENTATION - BUSINESS
TRANSACTIONS WITH CLIENT:
ATTORNEY DRAFTS WILL FOR
GODMOTHER AND IS NAMED
ULTIMATE BENEFICIARY.

You have presented a hypothetical situation in which an attorney provided estate
planning advice to her terminally ill godmother. In 1992, at godmother's request, the
attorney drafted a will which creates a residuary trust for the benefit of the godmother's
surviving spouse, who is the attorney's godfather. You state that the will requires the
trustee to pay the net income of the trust in quarterly, or more frequently, installments
to the surviving spouse for his lifetime. You also indicate that the will requires the trustee
to pay the surviving spouse so much, or all, of the principal of the trust as the trustee, in
the liberal exercise of discretion, considers appropriate for the surviving spouse's support
or health.
You state that the godmother requested that the attorney be named as executor, trustee,
and an ultimate beneficiary of any trust proceeds remaining after the death of the
surviving spouse. Further, attorney's sister, also a goddaughter of the godmother, is also
named as an ultimate beneficiary, the attorney and her sister being the only named
ultimate beneficiaries.
Finally, you indicate that the attorney and the godmother were not blood relatives;
however they maintained a mother/daughter-like relationship for nearly thirty years and
your facts indicate that the godmother trusted the attorney completely. Following the
godmother's death, the attorney/goddaughter began serving as executor and trustee.
You have asked the committee to opine whether, under the facts of the inquiry, (1) the
attorney's preparation of the will was a violation of the Code of Professional
Responsibility and, if so, what remedial action may be taken by the attorney; and (2)
whether the attorney's service as trustee and/or executor is an impermissible conflict of
interest and, if so, what remedial action may be taken by the attorney.
The appropriate and controlling Disciplinary Rules related to your inquiry are DR:5101(A) which states that a lawyer shall not accept employment if the exercise of his
professional judgment on behalf of his client may be affected by his own financial,
business, property, or personal interests, except with the consent of his client after full
and adequate disclosure under the circumstances; and DR:5-104(B) which provides that a
lawyer shall not prepare an instrument giving the lawyer or a member of the lawyer's
family any gift from a client, including a testamentary gift, except where the client is a
relative of the done.
The committee has previously opined that it is improper for a lawyer to prepare a will
for a client naming the lawyer as a beneficiary. See LE Op. 1100. The committee is of the
1. Although “relative” in a conventional sense consists of relationships formed by blood, marriage, or
adoption, it is possible that a court, under particular circumstances, may arrive at a different or broader
construction of the term.

Committee Opinion
August 12, 1993

opinion that, as used within the relevant Disciplinary Rule, the term "relative" does not
include a godparent. /1 Thus, the committee opines that the attorney's preparation of the
godmother's will, naming her and her sister as ultimate beneficiaries, was in violation of
that provision of the Code of Professional Responsibility.
As to whether any remedial action may now be taken by the attorney, the committee is
of the opinion that although the testator's death may have rendered that question moot,
the necessity for any further action to correct the situation raises a legal question beyond
the purview of the committee.
Regarding your second question, the committee has recently considered the propriety of
an attorney/draftsman serving as an executor/trustee. See LE Op. 1515, formerly LE Op.
1358. In that Opinion, the committee concluded that the total lack of any pre-existing
lawyer/client relationship greatly enhances the potential for a finding of undue influence
in the instance in which an attorney/draftsman also serves as executor or trustee. In the
facts you present, the committee is of the opinion that it was not per se improper, at the
time of the will's drafting, for the attorney/goddaughter to serve as executor or trustee,
provided consent was received from the testator/godmother/client after full disclosure, as
outlined in LE Op. 1515. Thus, if consent was received from the client at the time of the
will's drafting, after appropriate disclosure, it would not now be per se improper for the
attorney to serve as executor or trustee.
Legal Ethics Committee Notes. – Under Rule 1.10(a), this disqualification is imputed
to the lawyer’s entire firm.

1. Although “relative” in a conventional sense consists of relationships formed by blood, marriage, or
   adoption, it is possible that a court, under particular circumstances, may arrive at a different or broader
   construction of the term.