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The attorney’s preparation of a will should clearly and accurately reflect the client’s last wishes. Yet when an attorney makes a drafting error, innocent third parties can lose their intended inheritances. Nationwide, there are numerous court challenges to wills and trusts that exhaust tremendous resources to ascertain the deceased’s intent. Third-party victims of attorney drafting errors deserve a legal remedy to be made whole, but currently their recourses are limited, cumbersome, and sometimes nonexistent. That should change, and attorneys should be liable for damages to the intended beneficiary for any negligence in drafting wills. PATENT AND LATENT CONFUSION Many of these cases being litigated involve efforts to clarify patent or latent ambiguities that should have been resolved by appropriate drafting. A patent ambiguity is an uncertainty in the will which is obvious from the face of the will. For example, a patent ambiguity existed in one 1998 Louisiana case where two different provisions of the will disposed of the same plot of land to different heirs. In contrast, a latent ambiguity arises only when the testamentary provisions of the document are applied to the testator’s property or beneficiaries. For example, in one 2004 Texas suit, the latent ambiguity was the testator’s use of the word home. Litigation was required to determine whether the word meant the principal residence or the residence and abutting acreage. The Model Rule of Professional Conduct 1.1 requires competent representation by the estate-planning attorney. The existence of an ambiguity in a testamentary document may raise questions about whether the estate-planning attorney has in some way failed to render fully competent legal services (though the mere existence of an ambiguity does not necessarily reveal incompetence). When an attorney renders services to prepare a will, an attorney-client relationship exists between the testator and drafting attorney, and the attorney owes duties to the testator. Yet a will becomes effective upon the death of the testator, and it is then that will ambiguities are discovered. In most cases, third parties cannot expect the estate to seek remedy for attorney errors. A malpractice action brought by the estate is of little consequence because the decedent’s estate is not damaged by the ambiguity. PRIVITY AND ITS EXCEPTIONS Current law does not always provide a remedy to third parties who lose their inheritances. Jurisdictions deal with the attorney’s accountability to third parties with either (1) the strict privity rule; (2) exceptions to privity; (3) a balancing of factors test; or (4) the foreseeable reliance theory. The strict privity rule was adopted more than 100 years ago by the Supreme Court in National Savings Bank of District of Columbia v. Ward (1879), where the Court held that a third party not in privity with an attorney had no cause of action against the attorney for negligence. The Court stated that absent privity, the attorney would be exposed to countless claims and would be unable to zealously represent his or her clients. Although most jurisdictions no longer follow the strict privity rule, Alabama, Nebraska, New York, and Texas adhere to strict privity in the situation of estate-planning malpractice. Strict privity acts as an absolute bar to the cause of action and constitutes immunity for estate-planning attorneys when the ambiguity is discovered after the testator’s death. Adherence to such a principle is, as one English court noted, striking because real harm is caused when the only person who has a valid claim has suffered no loss (the decedent or his estate) and the only person who has suffered a loss has no valid claim (the third party). Some jurisdictions have softened the consequences of the strict privity rule by making narrow exceptions. The cases refer to the exceptions and approaches in an inconsistent manner. They can be divided into three groups: (1) the bad conduct exception; (2) the third party beneficiary exception; and (3) the frustrated intent exception. Courts willingly deviate from strict privity when the attorney’s conduct is fraudulent, malicious, or improper. For example, if the attorney intentionally misled the testator regarding the contents of his will, third parties harmed by the misrepresentation would not need to be in privity to file the malpractice action. But the bad conduct exception only provides third parties with an avenue for recovery when the third party was a victim of that bad behavior. Under this exception, the attorney, by engaging in bad conduct, extends his or her duty of care to the third party. A second exception to privity is made when the third party can show he or she was closely connected to the services rendered by the attorney to the testator. In this instance, jurisdictions are willing to extend the attorney’s duty of care to those third parties. Courts have created a patchwork of rules and terms for establishing what qualifies as sufficiently connected to the legal services. One 1994 Colorado case referred to the third party merely as the “intended beneficiary.” In a 1998 Maryland case, however, the third party needed to establish he or she was the “direct purpose of the estate planning transaction.” Although requiring the third party to establish this sufficient connection reduces frivolous suits, it also adds to the difficulty of meritorious actions. Other jurisdictions have carved out a narrow exception to the strict privity rule if the error contradicts the testator’s expressed intent. This exception deviates from the strict privity rule when the testamentary intent as “expressed in the document” is frustrated, in the words of a 2004 Idaho decision. It most often applies where there are clear-cut statutory formality errors and offers little practical relief for the victim of an ambiguous will. A MULTI-PART BALANCING TEST A majority of jurisdictions have abandoned the strict privity rule and its exceptions for the “balancing of factors” test. This test considers a number of elements in determining whether a duty is owed by the attorney to a third party. The California Supreme Court in Biakanja v. Irving (1958) developed this test. The factors to be considered are: (1) the extent to which the transaction was intended to affect the plaintiff; (2) the foreseeability of the harm to the plaintiff; (3) the degree of certainty that the plaintiff suffered injury; (4) the closeness of the connection between the attorney’s conduct and the injury suffered; (5) the moral blame attached to the attorney’s conduct; and (6) the policy of preventing future harm. Several years later, the California Supreme Court in Lucas v. Hamm (1961) applied these factors to an attorney malpractice case that involved claims of negligence against the drafting attorney by the will’s beneficiaries. The court considered an additional factor, which recognized that liability in such cases would not impose an undue burden on the legal profession. In its justification for changing California’s law, Lucas recognized that without extending an attorney’s duty of care to third parties in the estate-planning setting “no one would [ever] be able to recover.” Finally, in some states, the basis for determining an attorney’s liability to a third party under the balancing of factors test is deemed too broad and the risks of interfering with the attorney-client relationship too great, so an alternative theory has developed, the “foreseeable reliance” theory. This theory relaxes the harsh consequences of strict privity, allowing third-party liability on a more limited scale. The foreseeable reliance theory states that an attorney owes a duty to a third party if it is foreseeable that the third party will rely on the specific services rendered by that attorney. In these jurisdictions, an attorney has a duty not only to his client for whom the testamentary documents are being prepared but also to the foreseeable third parties who will rely on those services. In jurisdictions following the foreseeable reliance theory, actual knowledge of the reliance may not be required. For example, a 1992 Tennessee decision found that actual knowledge was not required so long as the average lawyer could foresee such reliance. BURDENING THE VICTIM Public policy mandates a departure from the harsh consequences of the strict privity rule, but the exceptions to privity, the balancing of factors test, and the foreseeable reliance theory are not without substantial cost to the injured third party. These methods require the third party to make a case within a case to recover from the attorney. First, the third party is required to prove he or she is entitled to bring the cause of action by satisfying the appropriate jurisdictional test. Then, if successful, the third party may proceed with the malpractice action. Unfortunately, the methods of imposing liability are not consistently applied even within jurisdictions, and the third party faces a gamble, at best. Although it is apparent that courts are striving for fairer outcomes, the third party is forced to absorb the risks, burdens, and significant costs associated with bringing the cause of action. The third party should not be required to bring a suit that will be financially and mentally draining. These burdens in and of themselves sufficiently discourage such suits and amount to a waste of judicial resources. Since the attorney and/or his or her insurance carrier may be required to make the third party whole, the defendants will likely expend exorbitant amounts to preclude recovery. This is especially true because there may be a lot at stake in the event of a recovery because the third party’s damages will depend on the size of the estate. Instead, the attorney should be held accountable for his or her error and the foreseeable harm. Third parties should be entitled to recover from the attorney regardless of the strict privity rule, its exceptions, or other approaches. When a will is ambiguous, the preparer should be accountable to the third party harmed. When the attorney’s standard of care falls significantly beneath a client’s reasonable expectation of competent representation, then the attorney’s duty should be extended beyond the client to those harmed. It is shocking that the third party harmed by the ambiguity may be without a remedy and that the attorney responsible may be immune from liability. Where there is a wronged victim and a negligent culprit, the law ought to provide a remedy. Angela Vallario is an assistant professor at the University of Baltimore School of Law. She can be reached at [email protected].

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