Monday, December 19, 2016
PROFESSIONAL RESPONSIBILITY: Disappointed will beneficiary has a cause of action against the drafting attorney as a third-party beneficiary. The testator instructed her attorney to draft a will leaving her estate to her mother and if her mother predeceased, to a named charity. The mother predeceased but subsequent litigation determined that her will gave only tangible personal property to the charity and failed to dispose of her real property which therefore passed through intestacy to her heirs. The charity brought an action against the attorney on a third-party beneficiary theory and prevailed both at trial and on appeal to the Virginia Supreme Court. In Thorsen v. Richmond Society for the Prevention of Cruelty to Animals, 786 S.E.2d 453 (Va. 2016), the court held that under Virginia common law, third-party beneficiaries can sue on oral contracts; that the applicable three-year statute of limitations begins to run on the testator’s death, and that the evidence was sufficient to show the testator contracted with the lawyer to draft a will benefitting the testator’s mother and the charity. One justice dissented arguing that abolition of the common law privity requirement is a policy issue to be decided by the legislature and not by the court.
Special thanks to William LaPiana (Professor of Law, New York Law School) for bringing this case to my attention.