Facts
- Dr. Warren K. Sisson retained attorney Shari Jankowski and her law firm to prepare a will and related estate-planning documents.
- Dr. Sisson allegedly told Jankowski he had cancer, did not want to die intestate, and wanted his entire estate to pass to his brother, Thomas K. Sisson, while preventing any inheritance by an estranged brother.
- Jankowski prepared the documents and sent them in mid-January 1999; Dr. Sisson received them on January 22, 1999, at a nursing home.
- Thomas contacted Jankowski shortly thereafter, reporting Dr. Sisson wanted to complete the documents quickly due to declining health.
- On February 1, 1999, Jankowski and two firm employees met Dr. Sisson to witness execution; he signed other documents but did not sign the will after discussing changes (including a contingent beneficiary provision).
- Jankowski returned several days later but did not proceed because she believed Dr. Sisson was not competent; she advised him to contact her when ready to sign.
- Jankowski did not later confirm whether Dr. Sisson regained capacity; he died intestate on February 16, 1999.
- Under intestacy, the estate was distributed among multiple relatives rather than entirely to Thomas, who then sued the attorney and firm for negligence and breach of contract.
Issues
- Whether an attorney owes a common-law duty of care to an intended beneficiary of a draft, unexecuted will to arrange timely execution and/or to provide reasonable testamentary advice, when the client dies intestate.
Decision
- The court answered the certified question in the negative.
- It held an attorney does not owe a duty of care to a prospective will beneficiary to have a will executed promptly.
- Because no duty was owed to the non-client intended beneficiary of an unexecuted will, the beneficiary’s malpractice-based claims could not proceed on that theory.
Legal Principles
- In New Hampshire, an attorney’s professional duty in estate planning runs primarily to the client, and attorney liability to non-clients is limited.
- An intended beneficiary of an unexecuted (unsigned) will cannot recover from the drafting attorney for alleged negligence that resulted in the client’s intestacy.
- Recognizing third-party duty for an unexecuted will is disfavored due to risks of conflicting obligations to the client, interference with the client’s ability to change testamentary intent before execution, and speculative litigation over intent and damages.
Conclusion
The court declined to extend malpractice liability to an intended beneficiary where the client never executed the will, holding that New Hampshire common law does not impose a duty on the drafting attorney to the prospective beneficiary for failure to secure execution or provide alternative testamentary advice that might have avoided intestacy.