QUESTION: Attorney took over the practice of X, a deceased attorney. X had represented a client in various matters. The client recently died. A relative of the client contacted Attorney to see if Attorney or X drafted a will for the client. Attorney explained that Attorney could not discuss the matter without a court order because the information was confidential. Attorney then looked through the client’s file and discovered an original will, executed by the client, and a photocopy of a 2nd will, which was drafted by X. The photocopy of the 2nd will was witnessed and notarized. Chapter 473.043.1 R.S.Mo. requires that after death of the testator the person having custody of the will shall deliver it to the probate division of the circuit court which has jurisdiction of the estate. Should Attorney file with the probate division in the county wherein the decedent client was a resident either the original will, the photocopy of the 2nd will, or both? Since X’s passing, neither the client or the client’s spouse contacted Attorney about the will. Also bear in mind that Missouri law provides that an application for letters of testamentary can be had for a lost will.

ANSWER: In light of section 473.043.1, it is permissible for Attorney to deliver the original will and the photocopy of the 2nd will to the probate division of the circuit court. However, a more conservative approach Attorney may wish to consider would involve providing notice to the court of Attorney’s possession of these documents and Attorney’s concern about disclosure of these documents in light of Attorney’s duty to maintain confidentiality under Rule 4 dash–1.6. This would enable Attorney to obtain a ruling from the court before disclosing the actual documents.

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