AVOIDING THE WITNESS STAND: PRACTICES AND STRATEGIES TO PROTECT ESTATE PLANS AND ESTATE PLANNERS

By Mike Masuda, Esq. and Leslie Finnegan, Esq.^*

The tranquility of an otherwise quiet afternoon that you had devoted to drafting a trust amendment is interrupted by a telephone call from an attorney announcing he has filed a contest of a will you drafted five years ago. He summons you to appear for a deposition and to bring your complete client file. The client’s name does not ring a bell and when you pull her file you find it to be rather slim, containing only the will, two pieces of correspondence, and some brief notes.

The deposition gives you little concern. Because your recollection of this client is limited, you assume that what you do remember will be privileged as attorney-client communication. Expecting the deposition to be short, you make plans to have lunch with a friend that day.

At 4:00 p.m., you emerge from the deposition, during which counsel alternatively accused you of being the beneficiary’s co-conspirator, his dupe, or professionally incompetent. As you nibble on a stale bagel as your belated lunch, you ponder: what could I have done to avoid all this?