## Facts

- Elizabeth B. Waters, a widow with significant medical problems, returned in 1983 to her home in Middletown, Delaware, where she was cared for by her cousin, Lillian Young.
- On December 16, 1988, Waters executed a will granting Young a life estate in Waters’s real and personal property, with the remainder to Waters’s granddaughter and next of kin, Claire Trent.
- Attorney Brian P. Murphy prepared the will after being contacted by Young’s family and did so without prior contact with Waters; he first met Waters at her home for the will execution.
- After Waters’s death, Trent contested the will, alleging lack of testamentary capacity and undue influence by Young and Young’s family.
- At the evidentiary hearing, Murphy testified regarding execution and Waters’s capacity and also served as trial counsel for the estate.
- A material factual dispute arose about the execution circumstances, including conflicting testimony from Murphy and Young about whether Young was present when the will was signed.

## Issues

1. Whether it was plain error to permit the will’s scrivener to act as trial counsel while also testifying as a necessary witness on contested issues of testamentary capacity and undue influence under Delaware Rule of Professional Conduct 3.7(a).
2. Whether the will was invalid due to lack of testamentary capacity.
3. Whether the will was the product of undue influence.

## Decision

- The Delaware Supreme Court held it was plain error for Murphy, the will’s scrivener, to serve simultaneously as trial advocate and a key witness on the disputed issues.
- The court reversed the Court of Chancery’s judgment upholding the will.
- The case was remanded for a new trial; the Supreme Court did not decide testamentary capacity or undue influence on the merits.

## Legal Principles

- Under Delaware Rule of Professional Conduct 3.7(a), a lawyer may not act as an advocate at trial if the lawyer is likely to be a necessary witness, absent limited exceptions.
- When the scrivener-attorney’s testimony is central to disputed issues in a will contest, the attorney must withdraw from the advocacy role and appear only as a witness.
- Allowing an attorney to serve as both advocate and central witness on contested factual issues can constitute plain error, warranting reversal even without a party’s objection.

## Conclusion

The Delaware Supreme Court required a new trial because the estate’s trial counsel was also the will’s scrivener and a central witness on contested issues, a role conflict that violated Rule 3.7(a) and undermined the fairness of the proceeding.


In re Estate of Waters, 647 A.2d 1091 (Del. 1994)