Can a lawyer draft a will for a family member that leaves substantial gifts to the lawyer or the lawyer's relatives?

Plain-English summary

A lawyer asked four related questions about drafting wills that would benefit her own family. The governing rule, RPC 1.8(c), provides that a lawyer representing a client shall not prepare an instrument giving the lawyer, or a person related to the lawyer as parent, child, sibling, or spouse, any substantial gift, including a testamentary gift, except where the client is related to the donee. The committee referred the inquirer to Washington's Informal Published Opinion 86-1 on whether a lawyer may prepare a will naming the lawyer as beneficiary or executor.

On the first inquiry, drafting a will for the lawyer's stepfather that named the lawyer's parent as primary beneficiary and the lawyer and siblings as contingent beneficiaries, the committee concluded that in-laws and step-relatives are not "related" within the meaning of RPC 1.8(c). Because the testator (the stepfather) was not related to the donees (the lawyer and siblings), the committee said the inquirer could not rely on the rule's exception to prepare that will. It observed that Washington's RPC 1.8(c) then differed from ABA Model Rule 1.8(c), which includes a person "with whom the lawyer or the client maintains a close, familial relationship," and that the Washington Supreme Court had published proposed amendments adopting that ABA language; if adopted, the inquirer might be able to prepare the will.

On the second inquiry, a will for the lawyer's parent naming the stepfather primary beneficiary and the lawyer and siblings contingent, the committee said the testator (the parent) is related to the lawyer and her sibling, so RPC 1.8(c) allows the lawyer to draft a will naming them, and the lawyer could also name the stepfather because she is not related to him within the rule. The committee added that the lawyer must follow RPC 1.7(b)(1) and (2), because her representation of the testator may be materially limited by her responsibilities to third persons (her sibling and stepfather). On the third and fourth inquiries (a will for the lawyer's spouse, and whether the wills can be drafted with the lawyer as executor on full disclosure), the committee said an attorney must follow RPC 1.7(b)(1) and (2) regardless of the facts, and referred the inquirer to Informal Published Opinion 86-1.

Currency note

This opinion was issued in 2005, before the Washington State Bar Association's adoption of the 2006 revisions to the Rules of Professional Conduct, including the proposed RPC 1.8(c) amendment the opinion discusses. Subsequent rule amendments or later opinions may have changed the analysis, particularly the definition of who is "related." Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule mentioned here.

In practice

Under the Washington rules as they stood at the time of the opinion, the committee applied RPC 1.8(c)'s flat bar on a lawyer preparing an instrument that gives the lawyer or a close relative a substantial gift, with the only exception being where the client is "related to the donee." The committee read "related" narrowly: parents, children, siblings, and spouses, but not in-laws or step-relatives. That distinction drove the answers: a stepfather's will gifting the lawyer's family was outside the exception, while a parent's will gifting the lawyer and siblings was within it. The committee paired the permitted scenarios with RPC 1.7(b)(1) and (2), which it said apply whenever the lawyer's duties to third persons may materially limit the representation.

Common questions

Q: Can a lawyer draft a will that leaves the lawyer or the lawyer's family a substantial gift?

A: The committee said RPC 1.8(c) bars it unless the client is related to the recipient, and it read "related" to mean parents, children, siblings, and spouses.

Q: Are in-laws and step-relatives "related" under RPC 1.8(c)?

A: The committee said no. It concluded in-laws and step-relatives are not "related" within the meaning of the Washington rule as it then stood.

Q: Could the lawyer draft her parent's will naming herself and her siblings?

A: The committee said yes, because the testator (the parent) is related to the lawyer and her siblings, so RPC 1.8(c)'s exception applied; she must still follow RPC 1.7(b)(1) and (2).

Q: Does RPC 1.7(b) apply even to a spouse's will?

A: The committee said an attorney must follow RPC 1.7(b)(1) and (2) regardless of the facts of the particular situation.

Background and rules framework

The opinion interprets RPC 1.8(c) (Model Rule 1.8(c), the bar on preparing an instrument giving the lawyer or a close relative a substantial gift) and RPC 1.7(b) (Model Rule 1.7, conflicts where the representation may be materially limited by responsibilities to third persons). The committee compared Washington's then-current RPC 1.8(c) with the broader ABA Model Rule definition of "related" persons and noted the pending Washington amendment. The analysis turns on whether the client is "related to the donee" and on managing the third-person conflict under RPC 1.7(b).

Citations and references

Rules of Professional Conduct:

• Model Rule 1.8 / Washington RPC 1.8(c) (preparing an instrument giving the lawyer or a relative a substantial gift; client-related-to-donee exception)
• Model Rule 1.7 / Washington RPC 1.7(b)(1)-(2) (conflicts; representation materially limited by responsibilities to third persons)

Other opinions cited:

• WSBA Informal Published Opinion 86-1: a lawyer preparing a will naming the lawyer as beneficiary or executor

See also

• WSBA Ethics Op. 1216: Lawyer Named Trustee in a Will She Drafted
• WSBA Ethics Op. 1118: Will-Drafter as Sole Trustee and Guardian
• WSBA Ethics Op. 1226: Lawyer for a Personal Representative

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=1330

Original opinion text

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

Advisory Opinion: 2086
Year Issued: 2005
RPC(s): RPC 1.8(c), 1.7(b), Published Informal Opinion 86-1
Subject: Drafting wills and RPC 1.8(c) and 1.7(b)

The inquirer asks four questions to which the committee opines as follows:

Inquiry No. 1

The inquirer seeks the opinion of the Committee on whether a lawyer may draft a will for the lawyer’s stepfather naming the lawyer’s parent as the primary beneficiary, the lawyer and the lawyer’s siblings as contingent beneficiaries, and the lawyer as executor.

The inquirer should be referred to Informal Published Opinion 86-1 with respect to whether the lawyer may prepare a will naming the lawyer as beneficiary, and whether a lawyer may prepare a will in which the lawyer is designated as the executor.

RPC 1.8 is the primary rule at issue (although RPC 1.7(b) also is relevant). RPC 1.8 provides, in relevant part:

"A lawyer who is representing a client in a matter: . . . (c) Shall not prepare an instrument giving the lawyer or a person related to the lawyer as parent, child, sibling, or spouse any substantial gift from a client, including a testamentary gift, except where the client is related to the donee."

Under each of the proposed scenarios, the persons receiving the testamentary gift will either be the lawyer, the lawyer’s parent or the lawyer’s sibling. We assume there is no material issue regarding whether the lawyer is related to her parent and her siblings within the context of RPC 1.8(c).

Assuming the gifts to the lawyer’s relatives are “substantial,” RPC 1.8 precludes the lawyer from representing the testator unless the testator is “related to the donee” within the meaning of RPC 1.8. The rule does not describe the degree of relationship necessary to satisfy the requirement that the client be related to the donee. We are unaware of any Washington case construing whether a stepparent or in-law is a “relative” within the meaning of RPC 1.8(c). Nor have other State Bar Associations provided written advice regarding whether a spouse or a step-child is “related” within the meaning of this rule. The Committee believes that, for purposes of RPC 1.8(c), persons who are “related to the donee” are the same persons identified elsewhere in RPC 1.8(c)—i.e. parents, children, siblings and spouses. The Committee is further of the opinion that in-laws and “step” relatives are not “related” within the meaning of RPC 1.8(c). Therefore, the Committee does not believe the inquirer can rely on the exception currently contained in RPC 1.8(c) to prepare the will under the circumstances described in the first inquiry.

In this regard, the Committee observes that RPC 1.8(c), as adopted in Washington State, is different than the ABA Model Rule of Professional Conduct 1.8(c). The latter provides that “[f]or purposes of this paragraph, related persons include a spouse, child, grandchild, parent, grandparent or other relative or individual with whom the lawyer or the client maintains a close, familial relationship.” The Committee notes that the Washington State Supreme Court has published for comment amendments to RPC 1.8(c) that contain the above-cited language from the ABA Model Rule of Professional Conduct 1.8(c). The Committee believes that, depending on the facts and circumstances, a lawyer could reasonably conclude that an in-law or “step” relative maintains a “close, familial” relationship with the lawyer and/or the client. Thus, if the Washington Supreme Court adopts the proposed amendments to RPC 1.8(c) in the form currently proposed, the inquirer may be able to prepare the will described in Inquiry No. 1.

Inquiry No. 2

The inquirer next asks whether a lawyer may draft a will for the lawyer’s parent in which the lawyer’s stepfather will be the primary beneficiary, the lawyer and her siblings will be contingent beneficiaries, and the lawyer be executor.

The responses to Inquiry No. 1 generally address this inquiry. We note that the testator is “related” to the lawyer and her sibling. Therefore, RPC 1.8(c) would allow the lawyer to draft a will naming the lawyer and her sibling as beneficiaries. Consistent with our conclusion regarding Inquiry No. 1, we also conclude the inquirer can draft a will naming her stepfather as a primary beneficiary because the inquirer is not related to the stepfather within the meaning of RPC 1.8(c). The Committee observes that the inquirer must follow the requirements of RPC 1.7(b)(1) and (2) in preparing the proposed will, as the inquirer’s representation of the testator may be materially limited by the inquirer’s responsibilities to third persons (i.e. her sibling and her stepfather).

Inquiry No. 3

The inquirer next asks whether a lawyer may draft a will for her spouse in which the lawyer will be the primary beneficiary, substantial gifts will be left to the lawyer’s parent or siblings, and the lawyer will be designated as executor. The inquirer adds the question as of whether it is necessary to follow RPC 1.7(b)(1) and (2) as to a spouse’s will.

The responses to Inquiries No. 1 and 2 generally address this inquiry.

Regarding RPC 1.7(b), an attorney must follow RPC 1.7(b)(1) and (2) regardless of the facts of any particular situation. Further, insofar as Informal Published Opinion 86-1 addresses the question raised, the inquirer is referred to that informal opinion, as well as RPC 1.7(b)(1) and (2).

Inquiry No. 4

The inquirer asks if these wills may be ethically drafted, is there is any problem with the lawyer being named primary or contingent executor provided full disclosure is provided to the client.

Again, the inquirer is referred to Informal Published Opinion 86-1.