As a general rule, an attorney hired to prepare a will or trust for a client is usually not liable to the beneficiaries of the will or trust because the beneficiaries are not clients of the attorney. But there are exceptions to the general rule. The general rule and its exceptions are demonstrated in two recent cases from Virginia and Florida.

In the Virginia case, Richmond Society for the Prevention of Cruelty to Animals v. Thorsen, Virginia attorney James B. Thorsen prepared a will for Alice Dumville. In the will, Alice left her estate to her mother and, if her mother predeceased her, to the Richmond Society for the Prevention of Cruelty to Animals (RSPCA). Ms. Dumville’s mother died in 2007, and Ms. Dumville died in 2008.

Mr. Thorsen sought to have the will interpreted to leave the entire estate to the RSPCA, but the judge concluded the will was unambiguous and left only tangible personal property to the RSPCA. 

The RSPCA sued Mr. Thorsen for legal malpractice. Mr. Thorsen acknowledged that the will he prepared did not reflect Ms. Dumville’s intentions, but he argued that the RSPCA could not sue for legal malpractice because it was a third-party beneficiary of the will, and there was no direct attorney-client relationship between the society and himself.

The court ruled in favor of the RSPCA and against Mr. Thorsen. Because the will left the RSPCA only the decedent’s tangible property, totaling $72,015.60, and the entire estate was valued at $675,425.50, the court awarded the difference, $603,409.90, to the RSPCA.

For more information about the case, click here. 

Compare the holding against the lawyer in the RSPCA case with the holding in favor of the attorney in the Florida case,  Bain v. McIntosh (U.S. Ct. App., 11^th Cir., No. 14-13836, March 2, 2015).

In Bain v. McIntosh, the trustee of the James Walther Revocable Life Insurance Trust, Patrick Walther, hired Florida attorney Steven Kane to represent him.  Howard Walther and Dorothy B. Walther, the beneficiaries of the trust, sued attorney Kane for breach of fiduciary duty. Mr. Kane argued he did not owe a duty to the beneficiaries because he was hired to represent the trustee, and he moved for summary judgment. The trial court granted summary judgment in favor of Mr. Kane, and the beneficiaries appealed.

On appeal, the U.S. Court of Appeals for the Eleventh Circuit affirmed. The appellate court held that an attorney retained to represent a trustee does not owe a fiduciary duty to the trust beneficiaries. According to the court, both the Florida statutes and court rules limit a Florida lawyer’s fiduciary duty to the trustee who hires him and does not extend the lawyer’s duty to the beneficiaries of the trust.

Thus, conduct by a lawyer that is considered legal malpractice in one state may be acceptable in another state. It seems to depend on how far and to whom a lawyer’s fiduciary duty extends under state law.

The case is annexed here – Bain v. McIntosh

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