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| This draft isn't going to work |
By Andrew Delaney
This case is about whether a lawyer owes a duty to a potential beneficiary when drafting—or more specifically not drafting—a will. Spoiler alert: there’s no duty when not drafting a will; there can be a duty when a will is actually drafted.
Let’s back up a bit for some context. Mr. Strong’s mom and stepdad got hitched in the ’60s. Mr. Strong and his siblings grew up on the homestead property, which consisted of two sections: “(1) a portion where the house was situated (House Portion), and (2) a large tract of undeveloped land (Upper Meadow).” In 1992, Mr. Strong moved back to the homestead to care for his mom and stepdad. According to Mr. Strong, stepdad told Mr. Strong that he was to inherit the entire property when stepdad and mom died.
Stepdad died in 2000 and mom inherited the entire homestead. Mom had executed a will in 1999 that left everything equally to Mr. Strong and his siblings. Mr. Strong didn’t like this plan and he discussed it with mom. According to Mr. Strong, mom said “I will leave you the house, the barn and the lower meadow, and you three kids can divide up the upper field.”
In 2006, mom hired lawyer to help with a potential sale to a developer. Though the sale fell through, lawyer did draft a codicil (an amendment to a will). The codicil named lawyer as executor but didn’t change the property distribution. In 2010, lawyer met again with mom at the home and she “indicated” that she wanted Mr. Strong to get the house portion and the siblings to split up the upper meadow. Lawyer maintained that this was just a “consult” and that mom never said anything like, “Change my will, lawyer man.” Interestingly, lawyer wrote a letter about this “consult” to Mr. Strong after mom’s death (there’s a footnote explaining that lawyer represented Mr. Strong when Mr. Strong was executor of mom’s estate).
In September 2011, lawyer again met with mom regarding her will. Lawyer maintains that mom was concerned about Mr. Strong’s ability to cover all the forthcoming taxes. It’s disputed whether Mr. Strong was at the meeting. Mr. Strong says that mom instructed lawyer to draft a codicil. And lawyer said he’d go to his office and do so. But that was the last time mom and lawyer talked.
Mom got sick six months later and went to the hospital. Mr. Strong called lawyer and told him that mom was dying and she wanted lawyer to come to the hospital with a will to sign. Instead, lawyer showed up with a power of attorney so Mr. Strong could handle his mom’s affairs. Mom died without executing a codicil, the property was sold, and the proceeds were split equally between Mr. Strong and his siblings.
So, Mr. Strong sued lawyer and his law firm for legal malpractice and consumer fraud. The trial court kicked the consumer fraud count on a motion to dismiss. Mr. Strong’s primary argument was that lawyer breached a duty of care in “failing to advise mother on matters of her estate and failing to draft a codicil reflecting her intent,” and Mr. Strong’s “amended complaint alleged that defendant breached a duty owed to plaintiff to the extent that he could have successfully challenged mother’s will.”
Lawyer and law firm filed a motion for summary judgment arguing that an attorney does not owe “a duty to a non-client prospective beneficiary of a nonexistent will or other estate planning document.” Mr. Strong opposed the motion, arguing that “‘it seems highly likely that the Vermont Supreme Court will join the group of progressive jurisdictions’ that use a multi-factor analysis to determine whether a duty exists in the estate-planning context.” The trial court held a hearing, and granted defendants’ motion. The gist of the trial court’s decision is that there generally has to be a direct relationship (“privity” if you want to sound lawyerly) to maintain a legal-malpractice action.
Mr. Strong appeals. He argues that (1) potential beneficiaries shouldn’t be barred from a remedy for lawyer errors that deprive them of inheritances; and (2) there must be a duty to complete a contracted-for will within a reasonable time, or at least to inform the client that it won’t be done so another lawyer can be hired. The SCOV is not persuaded and holds that there’s no duty to non-client prospective beneficiaries of undrafted, unexecuted wills, and thus no exception to the general requirement of a direct relationship to maintain a legal malpractice action.
Summary judgment gets de novo review, but you already knew that. If the moving party showed that there was no genuine issue of material fact and that it was entitled to judgment as a matter of law, then summary judgment stands.
To keep a legal malpractice action going, a plaintiff has to prove that the defendant lawyer was negligent and that the negligence was the proximate cause of the harm. Proximate cause is one of those concepts that law schools use to justify their continued existence. I think a good way to explain “proximate cause” is as “legally sufficient cause”—in other words, there’s enough of a relationship between the act and the harm that the law provides a remedy. I don’t know any great way to make that sound less lawyerly. This guy explains proximate cause with dominos—makes sense to me.
Generally, a lawyer only owes a duty of care to his or her client. That’s because we want lawyers to focus on their obligations to their clients without worrying about getting sued by random third parties. When the potential-duty-to-beneficiaries issue comes up, there’s some worry that it would interfere with a lawyer’s ethical obligations to the lawyer’s client.
There are exceptions—usually in an estate-planning or will-drafting context—when courts will recognize a duty to an intended third-part beneficiary. In fact, “in Vermont, a third party may sustain an action against an attorney for negligent misrepresentation, so long as the third party demonstrates ‘a relationship so close as to approach that of privity.’” This case, the SCOV observes, does not involve any claimed negligent misrepresentation. The SCOV further opines that it’s not eager to carve out a new exception as Mr. Strong requests.
Mr. Strong points to a California case that provides a multifactor test that considers how much the transaction was supposed to affect the plaintiff, the foreseeability of harm, how certain the injury was, the connection between the conduct and the injury, and the policy of preventing future harm.
Mr. Strong argues that Vermont should align its estate-planning law with more progressive states like California and use the multifactor approach. He argues that the strict privity requirement is outdated, plaintiff-hostile doctrine that’s manifestly unfair. But the SCOV says the California case was different (a residual trust of a fully drafted will was statutorily void), and declines Mr. Stron’g invitation.
Though Mr. Strong points to a number of cases in which beneficiaries of negligently drafted wills were allowed to sue, the SCOV reasons that Mr. Strong’s case is not the same. His case, the SCOV reasons, is about a will—or an amendment to a will—that was never drafted. The SCOV explains: “Plaintiff’s case is not about negligent drafting but rather about the absence of any drafting. Because it is premised on the claim that defendant should have drafted a new will for mother, his position is that of a prospective beneficiary of an undrafted, unexecuted will.” This, the SCOV reasons would invite claims based on speculation about the testator’s intent.
The SCOV further opines that a duty to prospective beneficiaries creates a risk of diluted loyalty and creates a conflict between the lawyer’s duty to the lawyer’s client and prospective beneficiaries. A beneficiary might want the will executed right away, while the client might want time to think. The SCOV also points out that these are muddy waters because the only witness that really knows the testator’s intent—the testator—is dead whenever a claim like this comes along. People change their minds. Often, a lawyer will prepare multiple drafts of a will before the client executes the will.
The SCOV points to Vermont’s strict execution requirements, which it reasons, “exist to provide proof of testamentary intent and capacity and to prevent fraud.” The SCOV accordingly declines “to recognize a duty to prospective beneficiaries of undrafted, unexecuted wills.”
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