Lawyers who are asked to draft estate plans for clients have an obligation to ensure that the plan they draft is in accordance with their client’s wishes. The client, however, is free to decide when and if they are ready to sign the estate plan. If the client, for whatever reasons, decides not to sign the estate plan, or cannot sign the estate plan, the lawyer generally cannot be sued by the disappointed beneficiaries.
A situation where a client made a specific request to a lawyer to draft an estate plan, but then became too ill to sign the estate plan was recently the subject of a recent New Hampshire Supreme Court opinion called Riso v. Dwyer (decided March 18, 2016). The plaintiff in Riso was one of 5 children. The plaintiff’s mother hired the defendant to draft an estate plan. The estate plan the mother intended to draft would have left all of her estate to the plaintiff. The mother gave the lawyer a specific deadline by which she wished to sign the new will. However, the mother missed the appointment to sign the will and eight days later died without executing the new will.
The plaintiff brought a lawsuit against the lawyer claiming she breached her obligation to his mother by failing to ensure the will was executed on the date requested. The trial court dismissed the complaint and the New Hampshire Supreme Court affirmed the dismissal. In its opinion, the New Hampshire Supreme Court held that a lawyer who drafts and estate plan has only a limited duty of care to an intended beneficiary. That limited duty of care, however, is largely outweighed by the attorney’s duty of loyalty to their client.
In sum, merely because the client stated that she wanted to have the will executed by a specific date does not mean the lawyer is liable to the beneficiary if the client fails to execute the will on the date requested. The lawyer must ensure that the client is fully comfortable with the estate plan and its ramifications. If the client changes their mind about the contents of the will, the lawyer is obligated to follow the client’s wishes, regardless of the impact to the beneficiaries.
If you have any questions regarding estate plans and obligations thereunder, please contact one of the attorneys at Hamblett & Kerrigan for a consultation.
Andrew J. Piela is a Director at Hamblett & Kerrigan, P.A. Mr. Piela concentrates his practice in civil litigation, family law, probate and land use litigation. You can reach Attorney Piela by e-mail at [email protected].