## Facts

- Dr. Denis Fabian hired attorney Ross M. Lindsay III to prepare a trust agreement executed in 1990.
- The trust provided Dr. Fabian’s wife, Marilyn, a life interest, with remainder distributions intended to occur at her death.
- Dr. Fabian died in 2000; his brother Eli survived him briefly but died a few weeks later, before Marilyn.
- Erika Fabian (Dr. Fabian’s niece) alleged Dr. and Mrs. Fabian told her she would be provided for and that the family expected she and another niece would receive a portion of the remainder after Marilyn’s death.
- After Dr. Fabian’s death, Lindsay informed Erika that under the trust’s terms she would receive nothing; the share she expected would pass instead to Eli’s estate.
- Erika claimed this outcome resulted from a drafting error that defeated Dr. Fabian’s intent and reduced or eliminated her remainder interest.
- Erika first pursued trust-related litigation to reform or construe the trust; the dispute ended in a settlement adjusting distributions without reforming the instrument, and she reserved claims against Lindsay.
- Erika then sued Lindsay and his firm for legal malpractice and for breach of contract as an intended third-party beneficiary of the estate-planning engagement.
- The circuit court dismissed under Rule 12(b)(6) on a strict privity theory, holding only the attorney’s client could sue for malpractice and rejecting beneficiary standing.

## Issues

1. Whether an intended beneficiary of a will or trust may sue the drafting attorney in negligence when a drafting error defeats or diminishes the client’s testamentary intent.
2. Whether an intended beneficiary may sue the drafting attorney in contract as a third-party beneficiary of the attorney–client agreement for estate-planning services.

## Decision

- The South Carolina Supreme Court reversed the Rule 12(b)(6) dismissal and remanded.
- The court recognized causes of action in both tort (legal malpractice) and contract (third-party beneficiary) for intended beneficiaries of estate-planning instruments when attorney negligence defeats or diminishes the client’s intent.
- The court declined to restrict proof of intent to the “four corners” of the instrument and rejected an approach that would bar extrinsic evidence.
- The court limited potential plaintiffs to intended and objectively ascertainable beneficiaries, generally those named in the instrument or identified by status.
- The court held Erika’s pleadings were sufficient to proceed, leaving proof of duty, breach, causation, damages, and intended-beneficiary status for later stages.

## Legal Principles

- In the estate-planning context, an attorney’s duty of reasonable care may extend beyond the client to intended third-party beneficiaries when the representation’s purpose is to benefit them.
- Intended beneficiaries may pursue a negligence claim against the drafting attorney if negligent drafting foreseeably defeats or reduces the client’s intended disposition.
- Intended beneficiaries may also sue in contract as third-party beneficiaries if the attorney–client contract was formed for their benefit and negligent performance frustrates that purpose.
- Courts may consider extrinsic evidence to establish the client’s testamentary intent and whether alleged drafting errors caused the beneficiary’s loss.
- To prevent indeterminate liability, standing is limited to intended, identified beneficiaries (typically those expressly named or defined by a specific class/status in the instrument).

## Conclusion

South Carolina permits intended, objectively identifiable beneficiaries of estate-planning instruments to sue drafting attorneys in tort and in contract when negligent drafting defeats or diminishes the client’s testamentary intent, and such claims cannot be dismissed solely for lack of attorney–client privity.


Fabian v. Lindsay, 410 S.C. 475, 765 S.E.2d 132 (S.C. 2014)