MD: Underlying Wills and Estates Planning
Facts: In 1968, Joseph Clancy (“Attorney”) prepared separate wills for Dr. Thomas Hurney (“Client”) and his wife (“Testator”), under which their property was to be distributed in a particular manner to their relatives upon the death of the survivor. Under the wills, Beverly Wilson (“Beneficiary”) was to receive a one-eighth share of the estate. In1987, Client (but not Testator) requested that Attorney draft a new will in order to accommodate the aging couple’s healthcare needs. Client’s 1987 will established two trusts—one to care for Testator and, the other, in the event that Testator predeceased him, to care for Client’s sister until her death. Under the new will, all of Client’s property was to be used to fund the trusts. After the deaths of the trust beneficiaries, the residue was to be divided equally between Beneficiary and one of Testator’s relatives. When Client predeceased Testator, all of the couple’s assets were held in joint tenancy with the right of survivorship. Accordingly, all of Client’s assets passed to Testator outside of the will. Upon Testator’s death, the property was distributed in accordance with her only will—the will drafted in 1968. Because, under the provisions of the earlier will, Beneficiary received a one-eighth share as opposed to one-half, Beneficiary brought a third-party malpractice suit against Attorney, alleging that “the 1987 will was prima facie a piece of malpractice, in that it purported to devise jointly held property, a legal impossibility.”
Issue: Whether a will that proposes dispositions of property that are legal impossibilities is prima facie evidence of the drafter’s malpractice.
Ruling: No. A will that proposes legal impossibilities is not necessarily malpractice on its face. Although the assets that Client’s will purported to convey were subject to joint tenancy survivorship rights, and ultimately passed to Beneficiary under Testator’s will, the language in Client’s will would have accomplished Client’s true desires if he had taken action to transfer his share of the couple’s jointly-held assets to his sole ownership. Attorney testified that he properly advised Client to do so.
Lesson: Poor drafting will not always expose an attorney to malpractice liability, but, in states like Maryland which permit disappointed beneficiaries to sue, a lawsuit will likely be in his future.