Can a lawyer write a will that leaves a bequest to the lawyer who drafted it?

Plain-English summary

Informal Opinion 2/68 responded to inquiries that followed State v. Collentine, 39 Wis. 2d 325, the Wisconsin Supreme Court's June 8, 1968 decision on the drafting of wills by attorney-beneficiaries. The Court established prospectively that an attorney may be scrivener of a will in which he is a beneficiary only when he stands in relationship to the testator as a natural object of his bounty and will receive no more than he would have received at law in the absence of the will. The Court stated that under any other circumstances, where a lawyer-draftsman receives a larger bequest, the activity would constitute unprofessional conduct.

Under those guidelines, the committee opined that the Court's language would prohibit a lawyer from drafting a will for his wife making himself the sole beneficiary to the exclusion of the children, and would likewise make it improper to draft a will for his wife leaving him a bequest equal to the maximum marital deduction (assuming one or more children). A partner or associate of the lawyer-beneficiary would also be foreclosed from drafting such a will.

The committee read the Collentine Rule to affect testamentary draftsmanship prospectively. It found it would not be improper for a lawyer to assist in preparing documents making him the beneficiary of an insurance policy owned by his wife even with living children, and that a lawyer-husband may prepare a deed taking real estate in joint tenancy with his wife to the exclusion of the children. The opinion noted the position was affirmed in ABA Informal Opinion 1145 (November 5, 1970).

Currency note

This opinion was issued in 1968, before Wisconsin's July 1, 2007 adoption of the revised Rules of Professional Conduct for Attorneys (the state's Ethics 2000 update), and it applied the standard set by State v. Collentine under the former Canons. The current counterpart governing a lawyer preparing an instrument that gives the lawyer a substantial gift, and gifts to a lawyer from a client, is SCR 20:1.8(c) / Model Rule 1.8(c), which contains its own exception for a donor related to the lawyer. 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 Treat this page as historical context, not current guidance.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 draft a will leaving a bequest to himself?

A: Only within the Collentine limits: the lawyer-draftsman had to be a natural object of the testator's bounty and could receive no more than he would have received at law. A larger bequest made the drafting improper.

Q: Could a lawyer draft a will for his wife naming himself sole beneficiary over the children?

A: No. The opinion read Collentine to prohibit a lawyer from drafting a will for his wife making himself the sole beneficiary to the exclusion of the children, or leaving him a bequest equal to the maximum marital deduction where there are children.

Q: Did the bar on drafting extend to the lawyer's partners?

A: Yes. The committee opined that a partner or associate of the lawyer-beneficiary would also be foreclosed from drafting such a will.

Q: Did the rule reach insurance beneficiary designations or joint-tenancy deeds?

A: No. The committee found it not improper for a lawyer to prepare documents making him beneficiary of an insurance policy owned by his wife, or a deed taking real estate in joint tenancy with his wife, even with living children.

Background and rules framework

The opinion applied the Wisconsin Supreme Court's holding in State v. Collentine, decided under the former Canons, to testamentary drafting by attorney-beneficiaries. The current counterpart is SCR 20:1.8(c) / Model Rule 1.8(c), which prohibits a lawyer from soliciting a substantial gift or preparing an instrument giving the lawyer or a related person a substantial gift unless the lawyer is related to the client.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.8(c) / SCR 20:1.8(c) (gifts to a lawyer; lawyer preparing an instrument of gift)

Cases:

• State v. Collentine, 39 Wis. 2d 325 (Wis. 1968), drafting of wills by attorney-beneficiaries

Other opinions cited:

• ABA Informal Opinion 1145 (Nov. 5, 1970), affirming the position

See also

• WI Ethics Op. E-75-3: Attorney Named as Trustee or Executor
• WI Ethics Op. I-1-63: Sale of a Law Practice and Client Files

Source

• Landing page: https://www.wisbar.org/formembers/ethics/pages/formal-opinions.aspx
• Original PDF: https://www.wisbar.org/formembers/ethics/Ethics%20Opinions/I-2-68.pdf