WITNESS ADVOCATE RULE
In New York, as well as perhaps every other jurisdiction, an attorney may not serve as an attorney as well as a witness in the same case. Rules of Professional Conduct, Rule 3.7 is mandatory and not permissive. It does not matter if it is a bench trial, jury trial, traffic court case or surrogate’s court case. In fact, the rule is so important to judicial administration that even partners and members of the same firm cannot act as a witnesses. Courts refer to the issue as the lawyer-witness rule and it comes up often enough in surrogate court cases. The June 2, 2015 case of Will of Lublin, 2015 NY Slip Op 31038(U) is a good example of how estate lawyers face these issues. While the lawyer in Lublin avoided the issue of Rule 3.7, a small change could have made it not so. Very briefly, the decedent, Mr. Irving Lublin, executed a will in 1997 and passed away in 2010. Someone objected, claiming that the decedent did not have sufficient mental capacity to create such a will, the will was not properly executed and that the will was the result of fraud and undue influence. The lawyer who drafted the will was deposed during the discovery phase. If, perhaps, the attorney who created the will also represented the executor, an entirely plausible and even relatively normal scenario, the attorney would be disqualified, as he/she would be a material witness.
UNIQUE POSITION IN THE CASE
It is not surprising that the attorney who drafted a will would have unique insight into the mental state of the decedent. It is not unusual for a will to go through several drafts before it is properly worded and structured. During this time, the attorney may be able to determine if the decedent is subject to undue influence. Moreover, the drafting attorney often witnesses the signing of the will, even if they are not listed as a witness on the will. They can offer an insight into any particular events or unusual circumstances that allow for the inference of fraud.
HOW TO AVOID THIS ISSUE
While experience alone is not going to save every attorney in every situation from making a mistake, lawyers and lay people alike know that the more experience an attorney has the better they are able to avoid mistakes. Experienced attorneys know how to insure that there is sufficient evidence to avoid a surrogate court battle. Here are some simple steps to avoid such a batte:
- Disinterested witnesses sign the will and certify that they found the testator to be of sound mind;
- If there is a drastic change in the terms from a previous will, the reason for the change should be sufficiently explained;
- If a child or other potential heir, who would inherit in the event the will is invalidated, is cut out, the reason for that must be explained;
- If the testator decided to grant gifts or otherwise depleted the estate, the reason for this should be outlined
When you decide to create or review your will, it is is essential you speak with an experienced estate planning attorney to help avoid these issues and to see to it that your will is administered without complication.