Opinion 24A
(This Opinion discusses a prior version of the Canons of Judicial Conduct; the most comparable current rule is Rule 2-2.11 Recusal, Subdivision (A)(1) & (5).)
Issue:
Should a Probate Judge disqualify himself in the following situations?
1. If a will he drafted is presented for probate;
2. If there is a question of construction of a will he drafted or witnesses presented to the court; and
3. If there is any other disputed matter presented (other than a will contest or constructed of a will).
Discussion:
Supreme Court Rule 2, Canon 3C(1) states:
It is the opinion of the Commission that the probate of a will seldom involves a controversy over construction or an evidentiary fact. However, as such dispute occasionally arise, a judge who drafted a will about to be admitted to probate should write the legatees and heirs advising them that he prepared the will and will disqualify himself upon complaint of any of the heirs or legatees. If after such notification, no complaint is received, the judge need not disqualify himself.
If the judge witnessed but did not draft the will then he need not disqualify himself unless a dispute arises as to the will construction or an evidentiary fact. Since the judge was a witness he has a “personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding.”
(Dated: December 3, 1981)
COMMISSION ON RETIREMENT, REMOVAL AND DISCIPLINE
OPINION 24A
OPINION 24A
Issue:
Should a Probate Judge disqualify himself in the following situations?
1. If a will he drafted is presented for probate;
2. If there is a question of construction of a will he drafted or witnesses presented to the court; and
3. If there is any other disputed matter presented (other than a will contest or constructed of a will).
Discussion:
Supreme Court Rule 2, Canon 3C(1) states:
(1) A judge should disqualify himself in a proceeding in which his impartiality might reasonably by questioned, including but not limited to instances where:
(a) he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;
(b) he served as lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer has been a material witness concerning it.
(b) he served as lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer has been a material witness concerning it.
It is the opinion of the Commission that the probate of a will seldom involves a controversy over construction or an evidentiary fact. However, as such dispute occasionally arise, a judge who drafted a will about to be admitted to probate should write the legatees and heirs advising them that he prepared the will and will disqualify himself upon complaint of any of the heirs or legatees. If after such notification, no complaint is received, the judge need not disqualify himself.
If the judge witnessed but did not draft the will then he need not disqualify himself unless a dispute arises as to the will construction or an evidentiary fact. Since the judge was a witness he has a “personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding.”
(Dated: December 3, 1981)