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Attorney Not Liable For Unsigned Will

Posted Friday, May 31, 2013 by John S. Palmer

Attorneys in Washington are not liable to those who fail to inherit because a testator dies before signing a Will prepared by the attorney, because it “would severely compromise the attorney’s duty of undivided loyalty to the client and impose an untenable burden on the attorney-client relationship” according to a recent decision by the Washington Court of Appeals. (Parks v. Fink, decided February 4, 2013).

It is easy to see why the plaintiff (a cousin of the decedent) was upset. There was ample evidence that the decedent intended his cousin to inherit the bulk of his estate. The attorney knew that the client was terminally ill and about 15 months passed between the time she delivered a draft Will to the client in the hospital and the client’s death.

The decedent filled in some blanks in the draft Will and signed it immediately, but his signature was ineffective because it was not witnessed as required by Washington law. The cousin presented witnesses who testified that the decedent thought the Will was done. The attorney testified that she never intended the draft Will to be signed, and wrote 3 letters advising the decedent that the Will needed to be signed in front of witnesses and a notary in order to be valid, but he kept putting her off until he felt better.

In his malpractice suit, the cousin asserted that the attorney owed him a duty to have the will promptly executed. The trial court ruled that in favor of the attorney and the cousin appealed.

The Court of Appeals stated that the case turned on a single issue-whether the attorney owed the cousin, who was not her client, a duty of care to ensure that the decedent executed his will promptly. To decide the issue, it applied the 5-factor balancing test adopted by the Washington Supreme Court in Trask v. Butler (1994) for determining when an attorney owes a duty to a non-client:

(1) The extent to which the transaction was intended to benefit the non-client plaintiff; (2) The foreseeability of harm to the plaintiff; (3) The degree of certainty that the plaintiff suffered injury; (4) The closeness of the connection between the attorney’s conduct and the injury; (5) The policy of preventing future harm; and (6) The extent to which the legal profession would be unduly burdened by a finding of liability.

As this was (somewhat surprisingly) a case of first impression in Washington, the court looked to decisions from other states, including the New Hampshire Supreme Court:

Creating a duty, even under the unfortunate circumstances of this case, could compromise the attorney’s duty of undivided loyalty to the client and impose an untenable burden upon the attorney-client relationship. To avoid potential liability, attorneys might be forced to pressure their clients to execute their wills summarily, without sufficiently reflecting upon their estate planning options.

And the Supreme Court of Connecticut:

Fear of liability to potential third party beneficiaries would contravene the attorney’s primary responsibility to ensure that the proposed estate plan effectuates the client’s wishes and that the client understands the available options and the legal and practical implications of whatever course of action is ultimately chosen.

Although the cousin argued that ruling against him would leave him without a remedy, the Court of Appeals found that:

On balance, we conclude that the risk of interfering with the attorney’s duty of undivided loyalty to the client exceeds the risk of harm to the prospective beneficiary. For the reasons discussed above, we join the majority of courts that have considered the issue and hold that an attorney owes no duty of care to a prospective will beneficiary to have the will executed promptly.

The outcome might have been different had the Court of Appeals found that the attorney intended the decedent’s signature on the draft Will to be valid, despite the fact that it was not witnessed or notarized. Several cases have found that attorneys may be liable to non-client beneficiaries if the testator’s intent is expressed and formalized in a signed Will, but the attorney either drafted the Will incorrectly (e.g., omitted clauses the client wanted) or negligently carried out its execution.

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Law Office of John S. Palmer11911 NE 1st St, Ste. B204,Bellevue, WA 98005-3056