March 24, 2009
Where There's a Will There's No Way
A lawyer who negligently fails to draft a will for a client is not liable for legal malpractice based on claims made by the intended beneficiaries of the estate, according to a decision of the South Carolina Supreme Court. The court found no policy basis to depart from a strict privity requirement that limits legal malpractice claims to former clients:
Our decision today not to impose a duty on an attorney in favor of a prospective beneficiary for alleged negligent failure to draft a will follows the law in other jurisdictions. We find persuasive the reasoning of decisions from New Hampshire, Connecticut, and Florida. We reference these three jurisdictions, for these states recognize generally that an attorney owes a duty to a non-client intended beneficiary of an executed will where it is shown that the testator’s intent has been defeated or diminished by negligence on the part of the attorney, resulting in loss to the beneficiary. Having relaxed the traditional privity requirement in legal malpractice claims, these states nevertheless draw the line and refuse for compelling policy reasons to permit a malpractice claim by a non-client for negligent failure to draft a will.
The client had consulted with the attorney and had filled out a form that had designated the plaintiffs as beneficiaries. Howver, she died before a will was executed and her estate was probated without any will. (Mike Frisch)
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