All attorneys are required to provide competent legal services to their clients. If an attorney fails to uphold this obligation and a client suffers damages as a result, then they might be guilty of committing attorney malpractice. In such a case, the attorney may be liable for that client’s damages.

Additionally, an attorney may also be held responsible for committing malpractice by persons other than their clients. In some states, attorneys who draft wills for clients owe a duty to do their job competently not only to those clients, but also to persons who are named beneficiaries under the will. However, not every state recognizes this principle.

Therefore, if you are a beneficiary to a will that you believe was drafted improperly due to malpractice errors, then you should check to see if the laws in your state will allow beneficiaries to bring a malpractice lawsuit. You may also want to consider contacting a local malpractice attorney for further assistance.

Who is Considered a Beneficiary under a Will?

A beneficiary, also referred to as a donee or a recipient, is a person who is legally entitled to receive benefits. In a will drafting context, this may include benefits, such as money or property from the estate of the person who created the will (i.e., the testator). The testator is allowed to name anyone they want as a beneficiary.

How Does Malpractice by an Attorney Affect the Beneficiaries?

If an attorney commits malpractice by improperly drafting a will, then their actions could result in many disadvantages for the beneficiaries, such as not being able to inherit what was given to them in the will.

Alternatively, the beneficiary also may inherit or receive less than what the testator (here, the attorney’s client) originally intended to give the beneficiary.

When May a Will Beneficiary Sue an Attorney for Malpractice?

Whether or not a will beneficiary may sue an attorney for malpractice based on an error made during the will drafting stage, will largely depend on which state law governs. For instance, some states do not allow a beneficiary to sue an attorney for will malpractice because technically the beneficiary is not the attorney’s client; the testator is the client.

According to the laws of these states, an attorney does not have a duty to the beneficiary to provide competent legal services. Instead, this duty is owed only to the person making the will.

In contrast, there are other states that have made changes to their laws regarding attorney malpractice. The laws in these states do permit a beneficiary to sue the testator’s attorney, even though the beneficiary is still not considered the attorney’s client. This legal theory is known as the “third-party beneficiary.”

It is a theory that is often used in contract law and generally applies when a legal claim contains the following factors:

  • The will was intended to benefit the beneficiary;
  • It was foreseeable that the attorney’s malpractice mistake would prevent the beneficiary from receiving what was provided to them by the terms of the will; and
  • The attorney’s act of malpractice did in fact prevent the beneficiary from receiving what they were entitled to under the will.

Again, be sure to keep in mind that a will beneficiary can only sue an attorney for malpractice in certain states. Thus, it is important to remember to check the local state laws before bringing an action or to call a malpractice attorney for more help.

What are Some Examples of Will Drafting Errors That May Be Malpractice?

There are certain errors that may be considered an act of malpractice when it comes to drafting a will. The following list provides some examples of when an error made during the course of drafting a will may be regarded as attorney malpractice, such as when:

  • The terms of the will provide two separate amounts to a beneficiary, but only one of them is correct. For example, “I give to my son twenty-five hundred thousand dollars, $25,000.” Notice that those are two different amounts.
  • A will bestows a gift to the wrong side of the testator’s family. For instance, if the will states, “I give all of my diamond jewelry to my father’s first cousin,” but the testator meant to gift their diamond jewelry to their mother’s first cousin, then this error may constitute malpractice.
  • The will improperly describes the property, which results in distributing the wrong property to the beneficiaries. For example, “I give the inground swimming pool to my stepchildren, so that they may enjoy swimming.” The testator intended to give their stepchildren the entire house, but due to this provision, the stepchildren now only inherit the pool and not the house.

Do I Need to Hire an Attorney for Malpractice in Will Drafting Issues?

If you have any questions about wills or believe that there is an issue regarding how an attorney drafted your will, it may be in your best interest to speak with a local liability attorney for further guidance.

An attorney who has experience in handling legal malpractice claims will be able to determine if you have a supportable case and can provide advice regarding the next steps you should take to resolve the matter.