If an attorney fails to provide competent legal services to their clients then that attorney may be guilty of committing Attorney malpractice. An attorney can also be held responsible for malpractice by persons other than his or her clients. In some states, attorneys who draft wills for clients owe a duty to do their job competently, not only to their clients, but also to persons who are beneficiaries under the will.
Who Is a Beneficiary under a Will?
A beneficiary is a person who is legally entitled to receive benefits, such as money or property from the estate of the person who made the will. The person who makes the will can name anyone as a beneficiary.
How Does Malpractice by an Attorney Affect a Beneficiary?
If an attorney drafts a will improperly, this can result in a beneficiary being unable to inherit what the will states. Similarly, the beneficiary may inherit less than what the client intended the beneficiary to have.
When Can a Will Beneficiary Sue an Attorney for Malpractice?
Whether a will beneficiary can sue an attorney for malpractice depends on what states law governs. Some states do not allow the beneficiary to sue an attorney because the beneficiary was not the attorney’s client. Under the laws of these states, the attorney does not have a duty to the beneficiary to provide competent legal service; the duty is owed only to the person making the will.
However, other states have changed their laws about attorney malpractice to allow a beneficiary to sue an attorney, even though they were not the attorney’s client. This is known as the third party beneficiary theory, and generally applies when the following facts about the case are true:
- The will was intended to benefit the beneficiary.
- It was foreseeable that the attorney’s malpractice would prevent the beneficiary from receiving under the will.
- The attorney’s malpractice actually prevented the beneficiary from receiving under the will.
Examples of Will Drafting Errors That May Be Malpractice
Below are a few will errors that constituted malpractice on the part of the will drafting attorney:
- The will gives beneficiary two contradictory amounts. I give to my son twenty-five hundred thousand dollars, $25,000. (Notice that the numbers of different.)
- The will gives the gift to the wrong side of the family. I give my estate to my heirs at law. (Client meant to give her estate to twenty-five cousins, but the client’s aunt received all the money instead).
- the will gives the wrong property to the beneficiary. I give the woodland to my son so that he may enjoy hunting. Client intends to give the entire farm to his son, but his son only inherits the part of the land with trees on it.
Do I Need a Malpractice Attorney?
If you have a problem regarding how an attorney has drafted or executed a will, speak to a defective products lawyers to find out if malpractice has been committed, and what you can do about it.