4.05.02. Beneficiary of a Will

A lawyer hired by a client to draft a will (or other estate papers) must do so in a competent manner.  The problem in these situations is that lawyer incompetence is often not discovered until the client is dead, and those harmed are the beneficiaries of the estate.  Some courts will allow the beneficiaries to sue the preparing lawyer in malpractice, even though the beneficiaries were not the lawyer’s client.  The justification for allowing suit in this situation is that the lawyer would escape liability altogether if beneficiaries were not able to bring suit.  Not all jurisdictions allow this type of claim.

Linda Lawyer represented Timmy Testator in preparing his will.  Testator said that he wanted to be sure that all of his children were treated equally.  Therefore, Lawyer created a trust and distributed the assets equally among Testator’s children.  Testator also owned a very valuable condominium.  Instead of putting the condo in the trust, the condo was left in the name of Testator and his wife in joint tenancy.  Upon Testator’s death the condo went solely to the wife who, upon her death, left the condominium to her live-in boyfriend.  The children of Testator sue the lawyer alleging he breached his duty to Testator by failing to advise Testator of the consequences of the joint tenancy relationship, which defeated the intent that all of Testator’s children should receive an equal share of his estate. Should the children be able to bring the claim? Baker v. Wood, Ris & Hames P.C., 364 P.3d 872 (Col. 2016)

No.  Even in jurisdictions that have recognized that beneficiaries have standing to bring a claim against the decedent’s lawyer, the disposition must be clear on the face of the document.  Thus, for example, where a disposition was invalidated because of the Rule Against Perpetuities or where the will is invalid because the lawyer failed to follow the formalities for a valid will.  In these situations, the intent of the testator is clear on the face of the document and the only reason that the intent was defeated was because of the attorney’s negligence.  Here, the dissatisfied beneficiaries received precisely what was left to them in Testator’s will.  However, in the Baker case cited in the example, the Colorado Supreme Court held that it would not recognize any right of a beneficiary to bring suit (unless there was fraud or misrepresentation by the lawyer to the beneficiaries).  This is known as the “strict privity” approach – the only person who has standing to bring a malpractice case is the client who is in privity with the lawyer.