Consider this scenario: A client,
“Robert,” decides to change his will by
adding a new beneficiary; he asks his
lawyer to draft a new document. The lawyer
promises to do so, but delays. Then, before the
lawyer draws up new papers, Robert dies. For
the attorney, one issue may quickly loom large:
legal malpractice.
In most U.S. jurisdictions, the long-standing
rule is that lawyers are liable to intended
beneficiaries in the limited circumstances
where the will was invalidated because of
improper attestation or the attorney concedes
negligence.’ But what if the will omits beneficiaries
because the lawyer didn’t follow
instructions or prepare the documents on
time? States differ on whether attorneys are
liable in such situations.
Some states allow intended beneficiaries
to sue under a contract theory based on third
party liability’ or a multi-factor balancing test.’
But at least four states-New York, Ohio,
Nebraska and Texas-say that unnamed beneficiaries
can’t sue, because they had no relationship
with the lawyer who drafted the will.
Under this theory, known as the privity doctrine,
an attorney is liable for professional negligence
to his client alone, and owes no duty to
third parties, unless there was fraud, collusion
or malice.4
There are numerous public policy arguments
in favor of privity First, if an attorney
must consider the needs of the intended
beneficiaries, such considerations may
affect his duty of undivided loyalty to his
client.5 Also, preoccupation with potential
negligence claims might affect the quality
of legal services, as the attorney may weigh
a client’s interest against possible liability.6
Finally; eroding privity might result in a limitless
number of potential malpractice
plaintiffs.7
The privity analysis in England has been
very much the same, and the broadly held
view is that it remains so, notwithstanding the
introduction of the Contracts (Rights of Third
Parties) Act 1999.8
Yet the English courts have fashioned a
remedy for disappointed beneficiariesseemingly
without offending the public policy
reasons to preserve privity, albeit at the
cost of enriching the beneficiary at the
lawyer’s expense. Twenty-five years ago, the
Court of Appeal in England held that a solicitor
will-preparer owed the beneficiary a duty
to see that the testator’s intentions were
implemented in a valid will, even though the
beneficiary did not rely in any way upon the
solicitor.9 That was not, however, seen as
implying any more general duty to act in the
beneficiary’s interest.’0
The watershed decision came in 1995
when White v. Jones reached the House of
Lords.” The Lords held that a solicitor’s
responsibility to his client extends to intended
beneficiaries who are deprived of their
intended legacies due to the solicitor’s negligence.
But the Lords carved out an exception:
If the problem came to light while the
testator was still alive, and he did nothing to
correct the mistake, there’s no negligence
liability.”
Clearly, the disappointed beneficiary must
prove that the testator intended to benefit
him. After that showing is made, the burden
shifts to the solicitor to prove that his retainer
effectively excluded any liability to the intended
beneficiaries.”
The disappointed beneficiary also must
prove that a solicitor breached his duty of
care to his client in relation to the preparation
of the will. There are many things a
solicitor can do wrong when preparing a
will,’4 from failing to carry out a testator’s
TRUSTS & ESTATES/ trustsanclestates.com AUGUST 2004
intentions