Trust Issues: Navigating Conflicts of Interest in Estate Planning

What a “Conflict of Interest” Really Means

In estate planning, a conflict of interest occurs when a lawyer’s representation of one client could be limited by duties owed to another client, a former client, or the lawyer’s own personal interests.

Conflicts most commonly appear when:

• The attorney represents a married couple with differing financial or familial goals.

• Adult children are included in the discussion or wish to “sit in” on meetings.

• A lawyer previously represented one family member and is later asked to represent the entire family.

• The attorney’s personal relationship (friendship, business partnership, etc.) could influence judgment.

Even innocent oversights — like copying a child on an email or accepting joint payment from both spouses — can raise red flags.

Common Conflict Scenarios in Estate Planning

1️⃣ Married Couples with Competing Interests

It’s common for attorneys to represent both spouses jointly. But problems arise when one spouse wants to:

• Leave more assets to children from a prior marriage,

• Protect property through a separate trust, or

• Change the plan without the other’s knowledge.

Best practice: fully disclose potential conflicts, obtain informed written consent from both parties, and clarify that you represent them jointly — not individually.

2️⃣ Blended Families

Blended families magnify tension. A parent may wish to provide for a new spouse and protect children from a first marriage.
If the lawyer represents the couple, the children’s interests are technically adverse — even if everyone seems to agree today.

Solution: encourage independent counsel for adult children and document the joint representation limits clearly.

3️⃣ Multiple Generations in the Room

Many clients want their children involved for transparency. While this can prevent misunderstandings later, it can also create undue influence or confidentiality breaches.

• Always obtain the client’s consent before allowing family members into meetings.

• Clarify who the client actually is — the parent, not the family as a whole.

4️⃣ Successor Trustee or Beneficiary Influence

When a future trustee or major beneficiary is present during planning, their opinions may subtly sway decisions.
Attorneys must ensure that the testator’s intentions remain independent, especially in high-value or contested estates.

5️⃣ Attorney as Fiduciary

Sometimes, the lawyer is asked to serve as trustee, executor, or power of attorney. While this can ensure professional management, it also creates a direct personal financial interest in the plan.
Lawyers must carefully evaluate whether such dual roles compromise their objectivity — and should disclose all compensation terms in writing.

How Attorneys Can Navigate Conflicts Responsibly

1. Use Written Engagement Agreements.
   Spell out who the client is, what the scope of representation covers, and how confidential information will be handled.

2. Obtain Informed Written Consent.
   If joint representation is appropriate, get signatures acknowledging potential conflicts and the limits of confidentiality.

3. Maintain Independent Judgment.
   Decline representation if the conflict cannot be waived without harming one or more clients.

4. Document Everything.
   Meeting notes, emails, and signed disclosures can be critical if a conflict allegation arises later.

5. Know When to Withdraw.
   If one spouse or child asks you to change a shared plan in secret, that’s your cue to step back and recommend separate counsel.

6. Leverage Professional Guidance.
   Review your jurisdiction’s Rules of Professional Conduct (e.g., ABA Model Rule 1.7 on conflicts of interest) and your state bar’s ethics opinions.

Case Example: In re Neville (Cal. State Bar 1985)

In this disciplinary case, an attorney represented both husband and wife in estate planning but later assisted the husband in secretly revising his plan. The court found a conflict of interest and imposed sanctions.
👉 Lesson: Transparency and equal loyalty to all joint clients are non-negotiable.

Key Takeaway

Trust issues aren’t just about family dynamics — they’re about ethics, boundaries, and clear communication.
By addressing conflicts head-on, estate planning attorneys can protect client trust, prevent litigation, and ensure the plan truly reflects the testator’s wishes.