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Professional Liability

Disappointed Legatees: Legal Malpractice Claims Against Testator’s Attorney

jfd_0748_m Co-Authored By Michael O. Adley Associate, Lafayette

Ordinarily, a legal malpractice claim can only be brought by the attorney’s client; however, the Louisiana Supreme Court, in Succession of Killingsworth, 292 So.2d 536 (La. 1973), held a legatee of a will, found to be invalid due to the drafting attorney’s negligence, may have a legal malpractice claim as a non-client, third-party beneficiary. The recent case, Wilkins v. Continental Casualty Company, interpreted Succession of Killingsworth narrowly, arguably limiting it to its facts. 2017 WL 1885815 (W.D. La. 2017), report and recommendation adopted, 2017 WL 1901411 (W.D. La. 2017). The Court held a legatee of a valid will has no legal malpractice claim against the testator’s attorney for negligence related to the drafting of a will or the advice given to the client with regard to the preparation of the will. In other words, a legatee only has a legal malpractice claim against the testator’s attorney where the will is found invalid due to the drafting attorney’s negligence.

In Wilkins v. Continental Casualty Company, Nadine Cook retained the services of attorney Ted Hoyt for her estate planning. In 2010 Hoyt prepared a trust, the Hiel and Nadine Cook Children’s Trust, for Mrs. Cook and her husband, Hiel. The trust would terminate at the death of Mr. and Mrs. Cook and the assets would be distributed to their children, Jerry Cook and Diane Wilkins. The trust further provided Jerry’s portion would be distributed to his wife, Vida Cook, if he died before the trust terminated.

Subsequently, Mr. Cook and Jerry passed away. Over the following years Hoyt prepared several last wills and testaments for Mrs. Cook. In 2016, Hoyt prepared a third will for Mrs. Cook which left the entirety of her estate to Diane Wilkins. The will did not mention the trust.

Soon thereafter Mrs. Cook passed away. Pursuant to the terms of the 2016 will, Wilkins was to receive Mrs. Cook’s entire estate. The trust assets, however, were not part of Mrs. Cook’s estate under the law. The trust was valued at about $900,000. The trust terms provided Wilkins would receive half the assets, and her sister-in-law, Vida Cook, would receive the other half.

Wilkins filed a legal malpractice suit against Mrs. Cook’s attorney, Hoyt. She alleged Hoyt committed malpractice due to the advice—or lack thereof—that he gave to Mrs. Cook regarding the will and trust. She alleged Mrs. Cook desired to leave her “everything.” She alleged Hoyt committed malpractice because he did not advise Mrs. Cook to revoke the trust so that the trust assets would become part of her estate and pass to Wilkins at her death. She did not allege Hoyt drafted an invalid will or trust. In other words, plaintiff claimed “under the terms and provisions of a valid will, she failed to receive her rightful share of the testator’s estate due to the negligence of the testator’s attorney.”

The Court rejected plaintiff’s attempt to expand legal malpractice claims by non-client third-party beneficiaries, finding “[i]f such an action were permissible, anyone could sue any lawyer with a trust and estate practice, claiming that they should have received more—or should have received something—in any friend or relative’s will due to an act or omission by the attorney in drafting the will.” Thus, the Court held a legatee of a valid will has no legal malpractice claim against the testator’s attorney for the drafting or advice given in preparation of the will. As such, the Court dismissed plaintiff’s claim on the pleadings.

While the Wilkins ruling was issued by a Federal Magistrate/District Court, not a Louisiana appellate Court, the arguments (and possibly the decision) should be used whenever an attorney who drafted a valid will is sued by someone claiming damages attributed to the alleged malpractice of the lawyer.  The Wilkins decision/arguments provide an opportunity for the attorney to rid himself of the litigation at the outset of the litigation.

Allen & Gooch is providing this legal update for informational purposes only. This article should not be construed as legal advice or a legal opinion as to any specific facts or circumstances. You should consult your own attorney concerning your particular situation and any specific legal questions you may have.