## Facts

- Robert H. Simpson, Sr. hired attorney Christopher Calivas to draft a will, executed in 1984.
- The will devised all real estate to Robert H. Simpson, Jr., except it granted the testator’s second wife, Roberta, a life estate in “our homestead located at Piscataqua Road, Dover, New Hampshire.”
- The Piscataqua Road holdings included the residence, over 100 acres, and business-related buildings.
- After the testator’s death, the son and stepmother petitioned probate court to construe “homestead.”
- The probate court found “homestead” ambiguous and construed it to include all Piscataqua Road real property, effectively giving the stepmother a life estate over the entire parcel.
- The son later paid approximately $400,000 to buy out the stepmother’s life estate.
- The son sued the drafting attorney for negligence and for breach of contract as an alleged third-party beneficiary, claiming the will failed to implement the testator’s instructions to give the wife a life estate only in the house and to leave the remaining land to the son.
- The trial court entered judgment for the attorney by (i) summary judgment based on collateral estoppel from the probate construction, (ii) dismissal of the contract theory for lack of duty to beneficiaries, and (iii) a directed verdict for lack of evidence of breach and damages.

## Issues

1. Whether a will-drafting attorney owes a duty of reasonable care to an intended beneficiary who lacks privity with the attorney.
2. Whether a probate court’s will-construction ruling collaterally estops an intended beneficiary from litigating malpractice against the drafting attorney regarding the testator’s intended disposition.
3. Whether evidence of the alleged drafting error and the beneficiary’s $400,000 buyout was sufficient to submit breach and damages to a jury.

## Decision

- The New Hampshire Supreme Court reversed the summary judgment, the dismissal of the contract claim, and the directed verdict, and remanded.
- The court held that a duty of reasonable care may run from a drafting attorney to an intended, specifically identifiable beneficiary.
- The court held that collateral estoppel did not bar the malpractice action because the probate construction question was not identical to the malpractice negligence question.
- The court held the record contained enough evidence for a jury to find breach and damages, making a directed verdict improper.

## Legal Principles

- A will-drafting attorney may owe a duty of reasonable care to intended beneficiaries when injury to those beneficiaries from negligent drafting is foreseeable and the beneficiaries are specifically identifiable.
- Intended beneficiaries may pursue claims in negligence and, where supported by the engagement’s purpose, as third-party beneficiaries of the attorney–client contract.
- Collateral estoppel applies only when the issue previously decided is identical to the issue in the later action; will construction (meaning of words in the executed instrument) is distinct from malpractice (whether the attorney failed to draft to the client’s instructions and professional standards).
- Evidence that a drafting error expanded another beneficiary’s interest, combined with proof of financial consequences (including a buyout payment), can support jury findings on causation and damages.

## Conclusion

The court recognized potential malpractice and contract liability of estate-planning attorneys to intended beneficiaries and held that a probate court’s interpretation of ambiguous will language does not, by itself, preclude a beneficiary from litigating whether negligent drafting caused compensable loss.


Simpson v. Calivas, 650 A.2d 318 (N.H. 1994)