Ethics Opinions

Joint Representation of Husband and Wife in Estate Planning

 

Opinion rules that a lawyer who jointly represented a husband and wife in the preparation and execution of estate planning documents may not prepare a codicil to the will of one spouse without the knowledge of the other spouse if the codicil will affect adversely the interests of the other spouse or each spouse agreed not to change the estate plan without informing the other spouse.

 

Inquiry #1:

 

Husband and Wife asked Attorney to represent them in planning the disposition of their estates and in the preparation of their wills. Both spouses agreed that all of the property of the first to die would be left to the surviving spouse with the exception of a small trust that would be established at Husband's death for the benefit of the couple's minor children. The trust would be funded prior to the distribution of the residuary estate to Wife. Husband has a terminal illness and the couple anticipate that Husband will be the first to die. The wills were drafted and signed. Husband subsequently called Attorney and expressed concern about Wife's ability to manage her funds. Husband asked Attorney to draft a codicil to his will increasing the amount put in trust for the minor children, thereby reducing the residuary bequest to Wife. May Attorney A draft the codicil without the knowledge and consent of Wife?

 

Opinion #1:

 

Attorney may only prepare the codicil without informing Wife if there was no clearly expressed intent by Husband and Wife, at the time of the preparation of the original estate planning documents, that neither spouse would change the estate plan without informing the other spouse and the provisions of the codicil are consistent with the best interests of Wife. See Rule 5.1(a). There are insufficient facts presented in this inquiry to determine whether there was an agreement not to change the estate plan or to determine whether the codicil is consistent with Wife's interests.

 

Inquiry #2:

 

In an entirely unrelated matter, Husband X meets with Attorney regarding his personal estate plan. Husband X wants to minimize Wife X's share of his estate because he believes she suffers from dementia. Also, it is his second marriage, of which there are no children, and Wife X has her own assets. May Attorney advise Husband on how to structure his estate plan to preclude Wife from dissenting from his will?

 

Opinion #2:

 

Yes, Rule 7.1(a)(1) permits a lawyer to seek the lawful objectives of a client through reasonably available means permitted by law and the Rules of Professional Conduct.