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Wilson v. Clancy - 747 F. Supp. 1154 (D. Md. 1990)

Rule:

Maryland recognizes the right of disappointed beneficiaries to sue the drafter of an allegedly deficient will, at least where the testator's clear intent to bequeath property to the plaintiff has been frustrated by the drafter's negligence. As in other cases of malpractice, the plaintiff must prove deviation from the standard of care on the part of the accused attorney, which has proximately caused her an injury.

Facts:

A married couple, testator and testatrix, executed their wills, which gave a beneficiary a one-eighth share of the estate. After the wife was placed in a nursing home the testator executed a new will that gave the beneficiary a one-half interest. All of the couple's property was joint property. The revised will bequeathed the property as if it were titled solely in the testator. The attorney who drafted the will told the testator that he needed to re-title his property, which he did not do. The testator died, and on the wife's death the property was distributed in accordance with her will. The beneficiary received one-eighth of the estate and she filed a third-party malpractice suit against the attorney. The court granted the attorney's motion for summary judgment. 

Issue:

Did plaintiff prove that the acts of the lawyer to be the proximate cause of her injury?

Answer:

No

Conclusion:

The court granted summary judgment to the defendant lawyer. Maryland has recognized the right of disappointed beneficiaries to sue the drafter of an allegedly deficient will, at least where the testator's clear intent to bequeath property to the plaintiff has been frustrated by the drafter's negligence. Contrary to plaintiff's position, the words of the will do not themselves establish malpractice. Rather, there could be malpractice only if defendant did not realize, or advise his client of, the need to change the titling of the couple's substantial property to the testator's sole name to bring it within his testamentary estate. There was nothing wrong with the wording of the will itself in this particular regard (the several alleged drafting errors found by plaintiff's expert witness going to other claimed defects not involved in this suit), nor was there anything wrong with Mr. Clancy's advice to Dr. Hurney in general, if Mr. Clancy is to be believed. In fact, plaintiff would have received the half share she now seeks had the testator but taken the steps he had assured defendant lawyer he would take to change the form of ownership of the property. Certainly, it is not malpractice for an attorney to draft a will that he or she knows will not be effective until the client takes further steps and, at the same time, to advise the client to take those steps. Defendant's deposition testimony establishes that that was just what he did.

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