Making Sense of Legal Malpractice
in Estate Planning

Professional Negligence in Estate Planning

Claimants filing legal malpractice complaints must present evidence that shows the following five events took place:

• The defendant and the testator held privy.
• The defendant owed a duty of care to the testator and to the estate to skillfully and diligently plan the testator’s interests as another competent estate attorney would have done under the same circumstances.
• The defendant breached the duty of care owed.
• The defendant’s negligence actually and proximately harmed the estate.
• The defendant’s harm caused the estate to suffer legal and special damages.

Negligent Estate Planning Performance

Inexperienced trust and estate attorneys who provide services without detailed knowledge of probate statutes, estate tax laws, the intended heirs, and the assets for disbursement are prone to make the following mistakes when planning estates for their clients:

• Forgetting to include or update necessary fiduciary designations.
• Leaving heirs or beneficiaries out of a will or trust.
• Not planning for inheritance tax liability.
• Adding heirs or beneficiaries to a will without the testator’s permission.
• Forgetting to alter a testamentary document after the testator requests it.
• Neglecting to conduct an inventory of estate assets and property.
• Drafting the wrong estate planning instrument for the testator to execute.
• Failing to examine documents before execution.
• Ignoring spousal rights when planning estates.

Privy Requirements for Filing Legal Malpractice Claims

Privity is a rule of law that affirms the fiduciary duties an attorney owes his client; thus, privy will exist when parties form mutual and successive relationships in privity.

Individuals who do not hold attorney-client privy generally cannot sue lawyers for legal malpractice. Simply put, the courts cannot hold lawyers liable for breach of attorney-client duties if the individual claiming negligence was never the attorney’s client.

However, as with most rules of law, exceptions exist.

Exception to the Rule

The Supreme Court of Iowa has held beneficiaries and heirs may pursue legal remedies on behalf of the estate to recover damages caused by negligent estate planning attorneys.

This means the harmed party holds a legal right to stand in the shoes of the deceased and to act on the testator’s behalf. Claimants must however narrow the legal malpractice remedy to repair only the harm suffered to estate.

Personal harm imposed on beneficiaries and heirs are not actionable because the claimants never held privy with the defendant.

Legal Remedies for Individual Harm Sustained

Heirs and beneficiaries who do not hold privy but were specially harmed by an attorney’s negligent estate planning may seek alternative legal remedies to make them whole again.

Tort claims differ from legal malpractice complaints—they do not require privy to be actionable.

This means claims like tortious interference with an expected inheritance, fraud and negligent misrepresentation are on the table for litigation when attorneys engage in these wrongdoings while planning their estates.