It is only natural that when a Will is challenged that either a beneficiary under the Will or the Executor of the Will may seek representation from the attorney who prepared the Will to represent them in defending the Will.  It is important to note, however, that this attorney will likely be disqualified from representing these individuals, as the attorney is actually a fact-witness to the proceeding.  As such, despite an Executor or beneficiary’s wish, the attorney who drafted the Will cannot serve as their attorney throughout the Will contest.  It is for these reasons that the attorney who drafted the Will should refer a Will contest out to a competent litigator in this area.  This may be unnecessary if the attorney had another attorney in his office who could handle the litigation while he serves as a fact-witness.  If this is not possible, however, then the matter must be referred out as the attorney who drafted the Will cannot also serve as counsel in defending its validity.
 
As such, whether you are a beneficiary under a Will, the Executor of the Will, or the attorney who drafted the Will, you should be mindful that the drafter of the Will should not attempt to serve as counsel during the course of the Will contest.  This will only lead to additional costs of litigation, as well as unnecessary delay.
 
Paul Norris is a Shareholder in Stark & Stark’s Probate Litigation Group in our  Lawrenceville, New Jersey office. For questions, or additional information, please contact Mr. Norris.