Is an attorney liability for negligent delay in completing and furnishing estate planning documents for execution by the client? The answer may depend on the intended beneficiaries’ standing to bring a malpractice action.
In Babcock v. Malone, 760 So. 2d 1056 (Fla. 4th DCA 2000), Plaintiffs filed suit alleging that defendant lawyer was negligent in failing to timely prepare a new will for their uncle. As a result, their uncle died before executing the new will under which plaintiffs would have inherited, and instead they were left nothing. The complaint alleges that the defendant, in March, had been retained to prepare a new will for the decedent. Defendant was advised that the decedent wanted to change his prior will and make his nine nieces and nephews, who were not beneficiaries under the prior will, beneficiaries under the new will. It was further alleged that defendant knew that the decedent’s health was failing and that time was of the essence, but by the time a draft of the will had been prepared in May, the decedent’s health had deteriorated, and he died without executing it. Plaintiffs attached to their complaint an unexecuted copy of the new will as well as defendant’s statements for services rendered showing a conference with the decedent, as well as a letter dated May 6 enclosing a revised draft of the will for decedent to execute if it met with his approval. The trial court dismissed the complaint for failure to state a cause of action. The appellate court affirmed. The court reasoned that because plaintiffs were not named in decedent’s prior will, they did not qualify as intended third-party beneficiaries and therefore, could not bring a legal malpractice case.
In Rydde v. Morris, 381 S.C. 643; 675 S.E.2d 431 (S.C. 2009), approximately a month before her death, the decedent engaged an attorney to prepare her estate plan. Before the completion of the plan, the decedent became incapacitated and was placed on a respirator and in a drug-induced sleep. She subsequently died without having signed her estate planning documents. Because a will was not prepared for execution prior to the decedent’s death, her estate passed through intestacy. The prospective beneficiaries contended that the attorney’s alleged negligent failure to timely draft a will and arrange for its execution permitted them to maintain a cause of action for legal malpractice against the attorney. The trial court dismissed the action because the attorney owed no duty to the prospective beneficiaries of the nonexistent will. The appellate court, in affirming the lower court, reasoned in part as follows:
The Connecticut Supreme Court was presented with this issue in Krawczyk v. Stingle, 208 Conn. 239, 543 A.2d 733 (Conn. 1988). While acknowledging its precedent permitting a cause of action against an attorney who failed to draft a will in conformity with a testator’s wishes, the Krawczyk court addressed “whether such liability should be further expanded to encompass negligent delay in completing and furnishing estate planning documents for execution by the client.” Id. at 735. The Connecticut Supreme Court concluded “that the imposition of liability to third parties for negligent delay in the execution of estate planning documents would not comport with a lawyer’s duty of undivided loyalty to the client.” Id.at736. Krawczyk advanced the following policy rationale for its decision, with which we concur:
A central dimension of the attorney-client relationship is the attorney’s duty of “[e]ntire devotion to the interest of the client.” This obligation would be undermined were an attorney to be held liable to third parties if, due to the attorney’s delay, the testator did not have an opportunity to execute estate planning documents prior to death. Imposition of liability would create an incentive for an attorney to exert pressure on a client to complete and execute estate planning documents summarily. Fear of liability to potential third party beneficiaries would contravene the attorney’s primary responsibility to ensure that the proposed estate plan effectuates the client’s wishes and that the client understands the available options and the legal and practical implications of whatever course of action is ultimately chosen. These potential conflicts of interest are especially significant in the context of the final disposition of a client’s estate, where the testator’s testamentary capacity and the absence of undue influence are often central issues.
In Miller v. Mooney, 431 Mass. 57, 725 N.E.2d 545 (Mass. 2000), plaintiffs were the children and heirs of decedent who alleged that, prior to her death, decedent wished to change her will to leave some money to plaintiffs. They sued defendant, decedent’s lawyer. The court affirmed summary judgment in defendant’s favor because there was no enforceable agreement on which plaintiffs could maintain a contract action. Plaintiffs would only have been incidental beneficiaries to any contract between defendant and decedent. Defendant owed a duty only to decedent and not to plaintiffs because a conflict of interest would have ensued. The court reasoned in part as follows:
We have previously noted that “in preparing a will, attorneys can have only one client to whom they owe a duty of undivided loyalty.” A client who engages an attorney to prepare a will may seem set on a particular plan for the distribution of her estate, as here. It is not uncommon, however, for a client to have a change of heart after reviewing a draft will. Confronting a last will and testament can produce complex psychological demands on a client that may require considerable periods of reflection. An attorney frequently prepares multiple drafts of a will before the client is reconciled to the result. The most simple distributive provisions may be the most difficult for the client to accept. Considerable patience and compassion can be required of attorneys drafting wills, especially where the client seeks guidance through very private and sensitive matters. If a duty arose as to every prospective beneficiary mentioned by the client, the attorney-client relationship would become unduly burdened. Attorneys could find themselves in a quandary whenever the client had a change of mind, and the results would hasten to absurdity. The nature of the attorney-client relationship that arises from the drafting of a will necessitates against a duty arising in favor of prospective beneficiaries.
In Hodge v. Cichon, 78 So. 3d 719 (Fla. 5th DCA 2012), the decedent retained a tax and estate planning specialist to prepare documents to implement a family limited partnership (FLP). However, prior to the execution thereof, the decedent deeded certain property to the estate beneficiaries (EBs) and executed wills that named them as beneficiaries, which altered the estate as it existed when the specialist’s plan was prepared. The decedent was subsequently deemed partially incompetent and guardians were appointed. At the guardians’ request, the probate court entered an order directing the implementation of the specialist’s plan in an effort to, among other things, reduce the estate’s tax liability. When the decedent died some two and one-half years later, the plan had not been fully implemented. The EBs filed a negligent action against the guardian’s attorneys alleging they were the intended beneficiaries of the decedent’s estate because they were beneficiaries under the wills. The attorneys filed a motion for summary judgment and argued to the trial court that the EBs lacked standing because no attorney-client relationship existed between them and the EBs. Further, they posited that an attorney-client relationship could not have existed due to the adversarial nature of the parties’ positions. The trial court granted summary judgment to the lawyers. The appellate court reversed and remanded the matter for further proceedings. The court found in part that genuine issues of material fact existed as to the status of the EBs and whether they were intended beneficiaries given the fact that the actions of retained counsel and the direction of the court in ordering the implementation of the estate plan were intended to benefit the EBs.