Will Drafting Attorney Malpractice

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 Who May Hold an Attorney Responsible for Malpractice in Will Drafting?

All attorneys have a professional obligation to provide competent legal services to their clients. Failure to uphold this duty, which results in damage to the client, can lead to attorney malpractice. In such situations, the attorney may be held liable for the client’s losses.

In some states, attorneys who draft wills can be held responsible for malpractice not only by their clients but also by the persons named as beneficiaries in the will. The laws in these states recognize that attorneys owe a duty of competence to the testator (the person creating the will) and the named beneficiaries. However, this principle is not universally recognized across all states.

If you believe you are a beneficiary of a will that was drafted improperly due to malpractice, you should review the laws of your state to determine if beneficiaries can bring a malpractice lawsuit. You may also want to consult a local malpractice attorney for further guidance.

Who is Considered a Beneficiary Under a Will?

In the context of will drafting, a beneficiary is a person who is legally entitled to receive benefits, such as money or property, from the estate of the testator.

The testator has the discretion to name any individual as a beneficiary in their will:

  • Family members: The testator may choose to name their spouse, children, or other family members as beneficiaries in their will.
  • Friends: The testator may choose to name close friends as beneficiaries in their will.
  • Charities: The testator may choose to name one or more charities as beneficiaries in their will.
  • Business partners: The testator may choose to name business partners or co-owners of a business as beneficiaries in their will.
  • Caregivers: The testator may choose to name a caregiver, such as a nurse or personal assistant, as a beneficiary in their will.
  • Organizations or institutions: The testator may choose to name an organization or institution, such as a school or hospital, as a beneficiary in their will.

Additionally, the testator may choose to name alternate beneficiaries or contingent beneficiaries in the event that their primary beneficiaries are unable to receive their gifts.

Let’s say the testator’s primary beneficiary is their daughter, but they want to ensure that their assets are distributed to their family members in the event that their daughter predeceases them. The testator could name their daughter as the primary beneficiary and then name one or more alternate or contingent beneficiaries in case their daughter cannot inherit.

For example:

“I give all of my assets to my daughter, Jane Smith. If Jane predeceases me, then I give all of my assets to my son, John Smith.”

In this example, the daughter is the primary beneficiary, but if she cannot inherit, the son is named as the alternate or contingent beneficiary. The testator may choose to name multiple alternate or contingent beneficiaries in case the first-named beneficiary cannot inherit

How Does Malpractice by an Attorney Affect the Beneficiaries?

Attorney malpractice in the drafting of a will can have significant consequences for the beneficiaries. These may include not being able to inherit the assets allocated to them in the will or receiving a smaller portion than the testator intended.

When May a Will Beneficiary Sue an Attorney for Malpractice?

The ability of a will beneficiary to sue an attorney for malpractice stemming from errors made during the will drafting process largely depends on the laws of the state in question.

Some states do not permit beneficiaries to sue attorneys for will malpractice, as they are not the attorney’s client – the testator is the client. According to the laws of these states, an attorney only owes a duty of competence to the testator, not the beneficiary.

However, other states have updated their laws regarding attorney malpractice, allowing beneficiaries to sue the testator’s attorney even though they are not considered the attorney’s client.

This legal principle, known as the “third-party beneficiary,” is often applied in contract law and typically involves the following elements:

  1. The will was intended to benefit the beneficiary;
  2. It was foreseeable that the attorney’s malpractice would prevent the beneficiary from receiving what the will granted them; and
  3. The attorney’s malpractice actually prevented the beneficiary from receiving their inheritance as outlined in the will.

The right to sue an attorney for malpractice is only available to will beneficiaries in certain states. Review the applicable state laws or consult a malpractice attorney for help.

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

Certain errors made during the will drafting process may constitute attorney malpractice.

Some examples include:

  • The will contains conflicting amounts granted to a beneficiary, such as “I give to my son twenty-five hundred thousand dollars, $25,000.” These are two different amounts.
  • The will mistakenly allocates a gift to a relative on the wrong side of the testator’s family. For example, the will states, “I give all of my diamond jewelry to my father’s first cousin,” but the testator intended to gift it to their mother’s first cousin. This error may amount to malpractice.
  • The will inaccurately describes the property, leading to incorrect distribution to beneficiaries. For instance, “I give the inground swimming pool to my stepchildren, so that they may enjoy swimming.” The testator intended to give the entire house to their stepchildren, but due to the incorrect description, the stepchildren only inherit the pool and not the house. This error could be considered malpractice.

Here are a few more examples of will drafting errors that may constitute attorney malpractice:

  • Failure to include all necessary provisions: If the attorney fails to include provisions that are necessary to carry out the testator’s wishes, such as provisions related to taxes, trusts, or other important matters, it could be considered malpractice.
  • Failure to properly execute the will: If the attorney fails to ensure that the will is executed properly, such as by not having it properly witnessed or notarized, it could lead to the will being deemed invalid and result in a malpractice claim.
  • Failure to identify all beneficiaries: If the attorney fails to identify all of the beneficiaries that the testator intended to include in the will, it could lead to a malpractice claim.
  • Failure to properly advise the client: If the attorney fails to properly advise the client regarding the consequences of their decisions, such as the tax implications of certain gifts or the effect of certain provisions, it could lead to a malpractice claim.
  • Drafting a will that does not reflect the testator’s wishes: If the attorney drafts a will that does not reflect the testator’s true intentions or wishes, it could lead to a malpractice claim. This could occur, for example, if the attorney does not properly communicate with the testator or does not take the time to fully understand their wishes.

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

If you’re unsure about wills or suspect that there might be a problem with how your attorney wrote your will, it’s a good idea to consult a local liability attorney for help. A legal malpractice lawyer can assess your situation and suggest the best course of action. They can also advise you on what steps to take next to address the issue.

LegalMatch is a legal services company that can help connect you with experienced lawyers who handle malpractice and will drafting issues.

Our online platform lets you submit your case details and receive personalized lawyer matches based on your specific legal needs and location. This can save you time and effort in finding a qualified attorney who can help you with your case.

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Use LegalMatch to find the right liability attorney for your case today.


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