Attorneys do not owe a duty to non-client prospective beneficiaries of undrafted, unexecuted wills.

Strong v. Fitzpatrick, 2017 VT 35 [May 12, 2017]

REIBER, C.J. In this legal malpractice case, plaintiff claims that his deceased mother’s attorney failed to draft a will reflecting her alleged intent to leave plaintiff a greater share of real estate than that left to his siblings. Plaintiff appeals the trial court’s summary judgment decision for defendant, arguing that defendant owed him a duty of care as a prospective beneficiary of his mother’s estate. We disagree and therefore affirm,

Plaintiff argues that “if an attorney owes a duty of care to intended beneficiaries of estate planning legal services the duty must encompass an obligation to complete a contracted-for will, already begun, in a reasonable amount of time, or at least obligate the lawyer to inform the client that he will not complete the drafted will so that client can hire another lawyer to do the work.”

As this Court has previously observed, courts around the country have made exceptions to the general rule requiring attorney-client privity, often in the estate-planning or will-drafting context. See, e.g., Hedges, 2003 VT 63, ¶ 7 ("Many courts have held lawyers liable to nonclient plaintiffs for negligence where the plaintiff is an intended third-party beneficiary of the attorney-client relationship—in estate-planning and will-drafting cases for example."); Bovee, 174 Vt. at 488, 811 A.2d at 140 ("[A] number of courts have relaxed the privity rule in limited circumstances—most often in the estate-planning context—where it can be shown that the client's purpose in retaining the attorney was to directly benefit a third party.")

Plaintiff’s case is not about negligent drafting but rather about the absence of any drafting. We reject plaintiff’s request to extend an exception to the general rule to the circumstances of this case; imposing on attorneys a duty to prospective beneficiaries of undrafted, unexecuted wills would undermine the duty of loyalty that an attorney owes to his or her client and invite claims premised on speculation regarding the testator’s intent.

We hold that attorneys do not owe a duty to non-client prospective beneficiaries of undrafted, unexecuted wills and therefore do not recognize an exception here to the general rule requiring attorney-client privity to maintain a legal malpractice action.