Opinion: 98-28
March 12, 1998
Digest:    It is recommended that a judge who witnessed the execution of a Will in which the judge was named a co-trustee of a charitable trust, notify the Attorney-General upon the death of the testator, when it appears that the attorney who drafted the Will, now denies that the Will had been executed by the decedent.

Rule:    E.P. & T. Law §8-1.4;
            22 NYCRR 100.3(D)(2),


            A full-time judge seeks the advice of the Committee concerning the judge's obligations, arising out of certain events that followed upon the judge's having been named a co-trustee under a Will, the execution of which the judge witnessed. As stated by the judge two and one-half years ago he/she was a witness to the execution of a Will by a close friend. The Will named the judge as a co-trustee of what was to become a charitable trust upon the death of the testator's spouse.* The attorney who drafted the Will was also named as executor and co-trustee.

            Several weeks before writing to the Committee, the judge was informed of certain conversations in which it was stated that a new Will had been executed, but that this new Will had not been drafted by the attorney who had prepared the Will the judge had witnessed. Further, it was stated that the Will witnessed by the judge had never been executed. Shortly thereafter the testator, who had brain cancer, died. The next day, the attorney-co-trustee telephoned and told the judge's spouse that "as far as he knew, the original will had never been executed," but acknowledged that he has an unsigned copy of the will witnessed by the judge and the judge's spouse.

            The judge asks the following questions: "Am I as a witness to a will, required to advise the Attorney-General that there was a will which would ultimately, have created a charitable trust? Am I required to approach any person in the office of the Surrogate regarding the situation?"

            It is the view of the Committee that the appropriate course for the judge is to notify the Attorney-General. While it cannot be said with assurance that the judge has received "information indicating a substantial likelihood that a lawyer has committed a substantial violation of the Code of Professional Responsibility " (22 NYCRR 100.3(D)[2]), the circumstances described by the judge suffice to warrant action on the judge's part. Informing the Attorney-General of the existence of the Will which would have created a charitable trust, seems to the Committee the most feasible way of dealing with the information possessed by the judge. The Attorney- General is charged with substantial responsibilities with respect to charitable trusts (see, E.P. & T. Law §8-1.4), and the Committee recommends that the judge contact the appropriate office or bureau of the Attorney-General.

* Pursuant to section 100.4(E) of the Rules Governing Judicial Conduct, the judge received permission from the Chief Administrative Judge to serve as a fiduciary under the Will.