Legal Malpractice Claims against Estate Planning
Lawyers by Trust and/or Will beneficiaries under California Law
The elements of a claim for legal malpractice are: (1) the duty of an attorney to use such skill, prudence, and diligence as members of his or her profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the breach and resulting injury; and (4) actual loss or damage resulting from the attorney’s negligence.
In California, the traditional rule was an attorney could only be held liable for professional negligence or malpractice to his or her own client. However, in cases involving testamentary instruments such as Wills and Trusts, the traditional rule is not followed. California courts have noted when an estate planning lawyer is retained to fulfill the testamentary instructions of his client in drafting a trust and/or will, the attorney realistically assumes a relationship not only with the client, but also with the client’s intended beneficiaries. The actions and omissions of the attorney will affect the success of the client’s testamentary intentions. If the lawyer negligently drafts a client’s trust or will, it is the beneficiaries, after the death of the client, who will suffer the injury because of the lawyer’s malpractice.
In these cases, the issue is whether the lawyer negligently prepared the trust or will so as to frustrate the testator’s intent regarding how his or her estate would be distributed on their death. The courts generally require the trust or will be signed by the testator in order for a beneficiary to have a claim of legal malpractice against the attorney who drafted the trust or will. Where a potential beneficiary pursues a legal malpractice action against the estate planning lawyer where the trust or will has not been signed by the testator, courts generally refuse to impose liability on the estate planning attorney.
Some cases where the estate planning lawyer was found liable to beneficiaries: (1) the attorney failed to have a will properly attested which resulted in the beneficiary receiving only 1/8 of the estate instead of all of it as the testator intended; and (2) a client retained a lawyer to draft a will to leave her entire estate to her daughters; at the time of retention, client disclosed she intended to get married. Client signed the will shortly before she married. After losing out on half of their mother’s estate to their stepfather, the daughters successfully sued the estate planning lawyer who failed to advise the client of the consequences of a post-testamentary marriage and negligently failed to include any provision in the will as to the intended marriage. These are only two examples taken from appellate court cases where the estate planning lawyer was found to owe a duty to the beneficiaries for negligently drafting a trust and/or a will.
In cases involving testamentary instruments such as a trust and/or a will, beneficiaries, even though not clients, in certain circumstances, can bring legal malpractice actions against the estate planning lawyer whose negligence in drafting the trust and/or will frustrates the testator’s intent by depriving the beneficiaries of assets the testator intended they receive.
