Calvert v. Scharf, 217 W. Va. 684 (2005)
WV: Wills, Trusts, and Estates
Student Contributor: Rachel Vincent
Facts: Estate administrator and will beneficiaries are suing attorney for legal malpractice in connect to drafting a will. Erma and Garret were married. They had no children together, but each had children from previous marriages. The plaintiffs in this action are the children of James A. Calvert, Sr., (son of Erma who is deceased) and the executor of his estate (who is his son James A. Calvert, Jr.). On July 18, 1978 Garrett executed his will, grating a testamentary general power of appointment over the property in the martial trust to his wife Erma. Garrett’s will also established a charitable trust to pay five percent of its net fair market value annually to his daughter Delores to start after his death. Upon Delores’ death, the principal of the residuary trust was to be split equally between the Union Mission Settlement, Inc., and World Vision, Inc. In the event that Erma failed to exercise the power of appointment granted to her in Garrett’s will, the principal of the marital trust was to be combined with the residuary trust created for the benefit of Delores and the charities. Erma died in 199 at which time One Valley Bank, successor-in-interest to the executor of Erma’s estate filed a declaratory judgment that it should distribute the assets of Garrett’s Marital Trust into the Living Trust. The declaratory action was settled. On March 12, 2001, the Calverts filed a legal malpractice action the attorney’s who drafted Erma’s will. Two questions were certified.
1. Whether the beneficiaries of a will have standing to assert a malpractice claim against the attorney who drafted the will?
2. Whether beneficiaries who voluntarily settled declaratory action challenging will can establish that negligence in drafting will proximately caused the injury.
1. No. Beneficiaries of a will have limited standing to assert a malpractice claim alleging negligence on the part of the lawyer who prepared the will.
2. Yes. Beneficiaries who voluntarily settled declaratory action challenging will could not establish that any negligence in the drafting of will proximately caused injury.
Lesson: “Only the direct, intended, and specifically identifiable beneficiaries of a will” have standing to sue the lawyer who prepared the will, and only where “it can be shown that the testator’s intent, as expressed in the will, has been frustrated by negligence on the part of the lawyer so that the beneficiaries’ interest(s) under the will is either lost or diminished.”
Tagged with: beneficiaries, estate, incidental beneficiary, intended beneficiaries, Standing, third party recovery, trusts, West Virginia
Posted in: West Virginia