NUMBER 355 1940

Question. A client requests his attorney to prepare his will. In the opinion of the attorney the client is not competent to make a last will and testament. Should the attorney prepare such will?

Assuming that the answer will be in the affirmative, if the attorney presents himself at the home of the testator, who is in extremis, and is able to secure only one other person to act as witness, should the attorney act as a subscribing witness in view of his opinion that the testator is incompetent to execute a will?


Answer. In the opinion of the Committee, an attorney should neither prepare a will nor act as an attesting witness in a case in which he is of the opinion that the testator is incompetent to make a will. The Committee points out that it has been held that a person is not justified in acting as an attesting witness who entertains any doubt of the testator’s capacity, (Scribner v. Crane ( 1830), 2 Paige 147; Brinkerhoff v. Remsen (1840), 8 Paige 488; In re Schmidt’s Will (N.Y, County, 1912) 139 N.Y. Supp. 464, 467; Matter of Martin (N.Y. County, 1913, 82 Misc. 574; Notes: 35 A.L.R. 79; 79 A.L.R. 404; 5 L.R.A. (N.S.) 575.)