NCPA - National Center for Policy Analysis

What if an Estate Lawyer Goofs in Drafting a Will?

January 22, 2002

Do beneficiaries have a right to sue an attorney for malpractice if they believe he or she has made a mistake in drafting a will? The answer depends upon which state's laws are governing in the case.

  • In New York, Texas and a handful of other states, the only person who can pursue such a suit is the deceased client.
  • But California, Hawaii, Florida and many other states allow claims by the living -- typically beneficiaries who think a lawyer's mistake has hurt them financially.
  • Potential beneficiaries in states which deny them legal recourse in cases of suspected legal malpractice point out that lawyers -- who prosper in the litigious culture they have promoted -- shouldn't be allowed to hide behind laws which protect them from their own mistakes.

States have very different laws on contesting wills. And the legal situation becomes even murkier if a case falls under the jurisdiction of two states with differing laws.

A case involving the billion-dollar estate of the late heiress Doris Duke illustrates the difficulty of reconciling conflicting state laws. New York and California have differing legal policies in such matters and each must decide whether it will claim jurisdiction over the dispute.

Experts say that if each state goes forward, there will be no simple answer.

Source: Michael Orey, "Battle of Wills: Should Disappointed Heirs Get to Sue Estate Lawyers?" Wall Street Journal, January 22, 2002.

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