No Attorney Malpractice in Will Drafting Case

March 1, 2010 | Erin Herbold


When drafting estate planning documents for clients, an attorney is only liable for malpractice to the client, not potential beneficiaries or heirs.

Here, the testator’s attorney drafted a will containing a $50,000 specific bequest to the testator’s church and a $50,000 bequest to a hospital. The balance of the estate was left to a granddaughter and her nephew, in equal shares. The will was properly executed in 2002, but a year later the lawyer received a call from the nephew notifying the lawyer that the testator was hospitalized and “was not doing well.” The nephew’s wife asked the attorney to prepare a codicil to the prior will, creating a spendthrift trust for the nephew who was in financial trouble. Under family pressure, the attorney drafted a new will for the testator, which was identical to the prior will except for the trust.  When the new will was shown to the family, the nephew’s wife further instructed the attorney to remove the specific bequests for the church and hospital. The attorney, once again, redrafted the will. 

At the hospital, the testator refused to sign the new will by repeatedly shaking her head no, according to the attorney’s notes. At the time, the testator was also very weak and could not talk to the attorney. A few days later, the attorney returned to the hospital and presented the testator with the new will. She again refused. Thus, the attorney informed the family that she would not sign the new will and made no further attempt to get the will signed. 

The testator died a few days later and her 2002 will was admitted to probate without contest from the family members. After, the nephew did sue the attorney and his law firm, alleging that the attorney “failed to see to” the execution of the new will. The trial court granted summary judgment for the attorney. 

On appeal, the appellate court affirmed, noting that a third-party claim may be allowed only “under severely limited circumstances.” The rationale behind the appellate court’s determination was to protect attorneys from “virtually unlimited potential for liability.” The attorney did not frustrate the testator’s intent.  In fact, he followed her directions and documented any communications diligently.  Converse v. Honohan, No. 9-1060/09-0923 (Iowa. Ct. App., Feb. 24, 2010).

Note:  While the case illustrates the importance of carefully documenting client communications and following the client’s wishes, it also illustrates the susceptibility of certain clients to being taken advantage of by others.  For the attorney in this case, an easy solution that would have avoided the resulting litigation would have been to include a provision in the will or trust requiring the client to consult with the drafting attorney before making changes to the documents.  Such a clause is consistent with the fiduciary duty that an attorney owes a client, and has been held to be “admirable and consistent with the highest ideals of the bar.”  Dunn v. Patterson, 919 N.E.2d 404 (Ill. Ct. App. 2009).