89 N.J.L.J. 401
June 23, 1966
Associate - Witness to Contested Will
The inquirer is an associate of a law firm and, while
associated with another law firm, attended to the execution of a
second codicil to a will. He had knowledge that prior to that time
insanity and mental incompetency proceedings had taken place with respect to the testatrix. He, therefore, asked her numerous questions for the purpose of assuring himself that she was aware of the nature and extent of her estate, the natural objects of her bounty, and the nature of the document she was executing. Being satisfied that she was so aware and understood what she was doing, he attended to the execution of the second codicil and signed it as an attesting witness.
A caveat has been filed and the inquirer desires to know, since he will be the principal witness in the case, whether his present firm can act for the proponent - executor - whom the inquirer represented at the time he was associated with the first law firm and at the present time--and whether he can argue the matter on the return day of an order to show cause which has been issued.
We dealt with a similar situation in Opinion 45, 87 N.J.L.J. 369 (1964). Canons of Professional Ethics, Canon 19, and other authorities therein cited are apposite here. That inquiry involved a partner of a firm who had witnessed a will which was being contested. We said there that was no ethical reason why the firm should not act for the proponent of the will, and we see no reason why the inquirer's firm should not so act here.
Of course, the inquirer may not argue the matter on the return day of the order to show cause, nor should he otherwise participate in the probate proceedings except in his role as a witness.