LEO: Wills - Business Relations with Client - LE Op. 1100
Wills - Business Relations with Client - Attorney Drafting Will and
Naming Himself as Executor and Devisee.
July 11, 1988
You advise that an elderly widow has asked you to draw up a new will
which names you as executor and names her son as the primary beneficiary.
Your client has virtually no estates, other than personal property, and is
living on social security payments. Should your client's son predecease
your client, she wishes to give her estate to a charity but is unable to
decide what charity to name.
You wish to know whether or not it is proper to include the following
provision in your client's will: "If my son _______ does not survive me
then I give, devise, and bequeath the aforesaid property to Attorney (your
name) of _______, Virginia, for the sole purpose of disposing of said
property by distributing it to the charitable institution of his choice,
less any costs of sale and distibution."
DR:5-104(B) states 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 donee.
In order to comply with the disciplinary rule, the Committee opines that
the property should be placed in a trust. The Committee does not believe
that the language which you have chosen clearly places your client's
property in your trust and suggests that the language be revised.
Committee Opinion July 11, 1988