Attorney Liable to Non-Client Beneficiary of Will for Legal Malpractice

The Supreme Court of Virginia ruled that an attorney who drafted a client’s Last Will and Testament may be sued for legal malpractice by a beneficiary of the will even though the beneficiary of the will is not the attorney’s client. Thorsen v. Richmond Society for the Prevention of Cruelty to Animals (Va., No. 150528, June 2, 2016).

Alice Dumville hired attorney James B. Thorsen to prepare her Last Will and Testament. Dumville wanted a will that would, upon her death, convey all of her property to her mother if her mother survived her, and, in the event her mother predeceased her, to the Richmond Society for the Prevention of Cruelty to Animals (“RSPCA”). Thorsen prepared the will, and Dumville executed the will as drafted by Thorsen.

At the time of Dumville’s death, her mother had predeceased her. Thorsen, in his capacity as co-executor of the estate, notified the RSPCA that it was the sole beneficiary of Dumville’s estate. Thorsen was subsequently informed that, in the opinion of the title insurance company, the will left only the tangible estate, not real estate, to the RSPCA.

Thorsen brought a lawsuit to correct the error in the will based on Dumville’s clear original intent. The Circuit Court found the language in the will unambiguously limited the bequest to the RSPCA to tangible personal property, while the intangible estate passed intestate to Dumville’s heirs at law. As a result, the RSPCA received $72,015.60 from the tangible estate, but the ultimate bequest, less expenses, would have totaled $675,425.50 absent the error.

Thereafter, the RSPCA sued Thorsen for legal malpractice. Mr. Thorsen acknowledged that the will did not reflect Ms. Dumville’s intentions, but he argued that the RSPCA could not sue for malpractice because the RSPCA was not his client to whom he owed a duty of care. Rather, according to Thorsen, the RSPCA was a third-party beneficiary of the will to whom no duty was owed. However, the trial court found for the RSPCA, and Thorsen appealed.

The Virginia Supreme Court affirmed, holding that Thorsen was liable to the RSPCA as a third-party beneficiary to Ms. Dumville’s will. The court ruled that clearly identifiable third-party beneficiaries can sue for legal malpractice, stating as follows:

In order to proceed on the third-party beneficiary contract theory, the party claiming the benefit must show that the parties to a contract ‘clearly and definitely intended’ to confer a benefit upon him. . . . Where the intent to benefit the plaintiff is clear and the promisee (testator) is unable to enforce the contract, our precedent recognizes a cause of action among the narrow class of third-party beneficiaries to enforce claims which would otherwise have no recourse for failed legacies resulting from attorney malpractice.

The Supreme Court found sufficient evidence “to conclude that [Ms.] Dumville clearly and definitely intended the RSPCA to be a third-party beneficiary of the contract.” Judgment was entered in favor of the RSPCA. One justice dissented from the Supreme Court’s opinion, arguing that third-party beneficiaries do not have standing to sue.

The case is annexed here: Thorsen v. Richmond Society for the Prevention of Cruelty to Animals

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