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Commonwealth of Massachusetts

Public Reprimand No. 2010-8



DWIGHT ALLEN WARE

Order (public reprimand) entered by the Board April 22, 2010.

SUMMARY1


The respondent was retained in the fall of 2006 by a married couple who asked the respondent to prepare a will for the wifeís elderly mother, whose health was failing and who was about to be admitted to a nursing home. The couple was acting as caretakers for the mother. In addition to the wife, the mother had two grandchildren: the coupleís daughter and her deceased sonís child.

When her son was alive, the mother had executed a will leaving $25,000 to each grandchild and the residuary estate to her son. The mother had not provided for the wife because the mother had already transferred most of her assets to the wife. The couple informed the respondent that, because the son had died, the mother now wanted to change her will to leave the residuary estate to the wife; that the wife had the motherís power of attorney to handle all her affairs; and that it was urgent to have the new will executed as quickly as possible. By 2006, the motherís entire probate estate amounted to approximately $68,000.

The respondent understood that the mother was his client. He had a previous relationship with the husband that materially limited his representation of the mother. The respondent did not explain to the couple that the wifeís mother was his client and that he would have to meet with her personally to determine her wishes and competency and obtain her consent to the representation, nor did he do so. The respondent also did not inform the couple or the mother that drafting a new will that changed a provision in the wifeís favor might be subject to challenge in the probate court for undue influence.

In November 2006, the respondent prepared the new will. He intended to discuss the will with the mother when he supervised the execution of the will, but the wife informed him that she had already made arrangements to have her mother sign the will in the presence of witnesses. The respondent turned the will over to the husband and made no effort to communicate directly with his client.

After the motherís death, the grandson objected to the wifeís petition to probate the 2006 will on the grounds that the will was the product of undue influence and the testatrix was not competent to execute the will. After trial, the probate court denied the petition to probate the 2006 will on the grounds that the petitioner had not met her burden to prove that the will was not the result of undue influence. The court did not rule that the testatrix lacked testamentary capacity to make the will.

The respondentís conduct in preparing a will for the mother when his relationship with the motherís daughter and son-in-law materially limited his responsibilities to the mother and absent her consent after consultation violated Mass. R. Prof. C. 1.7(b). His failure to take adequate steps to assure that the testatrix understood the import of the documents, agreed to their terms, was competent to sign the documents, was not subject to undue influence, and understood that the will might be challenged on a claim of undue influence violated Mass. R. Prof. C. 1.1, 1.2(a), 1.3, and 1.4(b).

The respondent was admitted to practice in Massachusetts on January 18, 1977. In aggravation, the respondent had two prior admonitions, Admonition No. 99-64, 15 Mass. Attíy Disc. R. 770 (1999), and Admonition No. 08-19, 24 Mass. Attíy Disc. R. 897 (2008). In mitigation, the respondent had no personal interest in the representation other than his fee of $475, and acted in good faith.

The matter came before the Board of Bar Overseers on a stipulation of facts and a joint recommendation for a public reprimand. On April 12, 2010, the board ordered a public reprimand.


1 Compiled by the Board of Bar Overseers based on the record of proceedings before the Board.



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