LEO: Estate Planning: Ethical Propriety  LE Op. 1283

 

Estate Planning: Ethical Propriety of Advising Client of "Self-

Proving Will" Provision.

 

September 21, 1989

 

You have asked the Committee four questions with regard to the ethical

implications of § 64.1-87.1 of the Code of Virginia, which provides the

form to be used in making a will "self-proving." The Committee will

address each question in the order in which it was presented in the

inquiry.

 

I. In the Committee's view, where a state statute or a federal law does

not require a lawyer to make a will self-proving, the Code of Professional

Responsibility would not place an ethical obligation on the lawyer to make

a will self-proving. Therefore, since there is no legal requirement that a

lawyer incorporate generally the self-proving clause in a will, there is

nothing in the Code of Professional Responsibility which requires a lawyer

to do so. In fact, if it is the client's wish not to include such a clause,

the lawyer would have an ethical obligation to adhere to his request to

the extent it is permitted by applicable law and not violative of a

Disciplinary Rule. (See DR:7-101)

 

II. The Committee believes that even if a majority of the wills prepared

by Virginia lawyers are "self-proving," neither that mere fact alone nor

the fact that one or more lawyers do not include such a provision does not

constitute an ethical violation whether or not the client has expressly

requested that the "self-proving" language be omitted in his/her will.

With regard to questions one and two, the Committee assumes that the

client has been advised by counsel of the legal implications of a properly

self-proving will. (See DR:7-101)

 

III. The Committee believes that a lawyer having knowledge of the

provisions of § 64.1-87.1 and § 64.1-87.2 has an ethical obligation to

advise his client not only of the statute's existence but also in

particular its future legal impact. A lawyer's ignorance or unfamiliarity

with the statute does not excuse him from his ethical obligation to

represent a client competently. (See Canon 6 and DR:6-101)

 

IV. The Committee is of the view that a lawyer or law firm's policy

decision that self-proved clauses will be omitted from all wills prepared

by the lawyer or law firm since incorporation of the same provides

relatively little benefit to the client and may be incongruous with the

basic principle of zealous representation. Disciplinary Rule 7-101

provides in part that a lawyer shall not intentionally fail to seek the

lawful objectives of his client through reasonably available means

permitted by law and the Disciplinary Rule; furthermore, Ethical

Consideration 7-8 [ EC:7-8] also provides that:

 

A lawyer should exert his best efforts to insure that decisions of his

client are made only after the client has been informed of relevant

considerations [including, but not limited to, legal considerations].

 

In addition, it is the Committee's opinion that adoption of such a

general policy by a lawyer or law firm in the hopes that the non-use of

the self-proving clause will encourage the client's heirs to return to the

drafting attorney for assistance in the estate administration may be

violative of DR:1-102(A)(1) if, in doing so, the client is not advised

of the advantages and disadvantages of a self-proving will or not allowed

to make the choice.

 

Committee Opinion September 21, 1989