CA: Wills, Trusts, & Estates
Facts: The plaintiffs in this case are the beneficiaries of a will that was drafted by the defendant attorney. The defendant drafted a will for his client. After the death of the client the will was found to be in violation of the rule against perpetuities. Because of this error, the beneficiaries of the will had to make a settlement with relatives of the testator. If the will was drafted properly the beneficiaries would have received an additional $75,000. Traditionally it had been held that an attorney who drafted an invalid will could not be held liable for negligence or breach of contract where a beneficiary was deprived of benefits because of the error.
Issue: Is privity required where the intended beneficiaries of a will are harmed by an error in the drafting of the will?
Ruling: No. Privity is not required. A policy not requiring privity is appropriate because “if persons such as plaintiffs are not permitted to recover for the loss resulting from negligence of the draftsman, no one would be able to do so and the policy of preventing future harm would be impaired.” The extension of liability in this case “does not place an undue burden on the profession.”
Lesson: When drafting a will an attorney must take great care. A will that is not drafted properly can result in liability even though there is no privity between the beneficiaries and the attorney.