In most cases, an attorney owes no duty to a non-client and therefore cannot be successfully sued for malpractice by a party they have not represented. One exception to this rule is in estate law. Of course an estate-planning attorney owes a duty to their client prior to the client’s death. Some areas in which estate-planning attorneys can be found negligent include drafting errors, errors in execution, failure to accomplish a testator’s intent, failure to update an estate plan based on new laws or facts, failure to investigate heirs and assets, allowing execution when the testator lacks testamentary capacity, and delay in implementation of an estate plan.
Under the privity doctrine, lawyers are directly liable to their clients for breaching their duty. The liability may extend to third parties, specifically the intended beneficiaries.
A Richmond lawyer and his firm are liable for a $603,409.90 bequest that should have gone to the Richmond Society for the Prevention of Cruelty to Animals (“RSPCA”), as a divided Supreme Court of Virginia has upheld a trial court’s decision in a legal malpractice case.
A Chesterfield County resident requested a Richmond lawyer prepare her will to leave her estate to her mother, but if her mother predeceased her, then the estate was to go to the Richmond Society for the Prevention of Cruelty to Animals. The will was prepared and executed in 2003.
The client passed away in 2008, after her mother had died, and the attorney, as the estate’s co-executor notified the RSPCA that it was the estate’s sole beneficiary. However, a title insurance company said the will left only the tangible estate to the RSPCA, but all real estate passed to her heirs at law. The RSPCA sued the attorney who prepared the will for legal malpractice.
At trial, the parties stipulated that the attorney had a duty to prepare his client’s will accurately and that he did not accurately incorporate her intent to give her real estate to the animal welfare organization. The RSPCA’s ultimate bequest, less expenses, would have totaled $675,425.50. A Richmond Circuit Court found the sum of $603,409.90 as damages for the RSPCA. A six-member majority of the court upheld the ruling in its June 2 decision.
Justice Elizabeth McClanahan dissented, saying the RSPCA did not have standing to sue for breach of the contract for legal services between the attorney and his client. The rule of strict privity in legal malpractice actions has not been abolished in Virginia, McClanahan said, and any decision to abolish the common law privity requirement should be left to the General Assembly.
Abandonment of the privity doctrine is “particularly troublesome” in the context of estate planning services, McClanahan said, under the majority holding that the legal malpractice cause of action accrues on the date of the client’s death. This means an attorney may be held liable for malpractice decades after the will was drafted, she said.
Golightly Mulligan and Morgan can assist you with both estate-planning needs and professional liability litigation. Contact us for more information or a consultation.