Why Legal Malpractice Claims Arise From Will Drafting Mistakes and How to Avoid Them

Some attorneys have shortcomings when it comes to preparing testamentary documents. Making mistakes when drafting wills—either because of poor communication, imperfect discovery or unfamiliarity of estate law—is the single most common legal malpractice claim that challengers bring during probate litigation in Iowa.

In many cases, lawyers can avoid making drafting errors during estate planning.

Lack of Communication

Most estate malpractice lawsuits in Iowa allege the testamentary documents in controversy did not reflect what the challenger communicated to the attorney during pre-draft meetings.

Drafting errors that originate from miscommunication among parties regularly appear when an estate planning attorney doesn’t follow the client’s instructions or forgets to secure the client’s consent or fails to warn him or her when modifying the will.

Will-drafters can readily avert negligent communication errors by:

  • Creating checklists and using them during drafting meetings.
  • Documenting instructions and verifying the will’s provisions with the client before drawing up the estate plans.
  • Having a second probate attorney review the will to make sure it observes estate law precedent.
  • Comparing checklists and notes collected during meetings with the final provisions in the will.
  • Having the client examine and sign off on the final will draft once completed.

“Clear communication with clients avoids estate planning malpractice lawsuits.”

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Negligent Discovery

Attorneys who prepare estate plans hold fiduciary duties to investigate the testator’s assets diligently before including them in testamentary documents and must verify that the testator possesses the testamentary capacity to execute his estate planning instruments.

  • Discovering estate assets. Estate law obligates attorneys to discover how assets are held before entering them into the will. This means will-drafters should not rely solely on the testator’s declaration of real property and assets taken during pre-draft meetings.

Lawyers can escape legal malpractice claims by hiring an auditor to perform a full inventory of their client’s property during pre-drafting discovery, and afterwards, have the assessor verify whether the testator actually owns the assets he plans to distribute among beneficiaries—particularly looking out for hidden life insurance policies and pension plans that the client’s heirs can take upon the testator’s death.

  • Discovering testamentary capacity. Iowa statutes further compel attorneys to competently evaluate their client’s testamentary capacity both when drafting the will and again before execution.

Starting with personal interviews with the testator and performing in-house testing of the client’s metal competence and continuing on to studying his past medical records and getting an expert assessment of the client’s mental condition, the more discovery made into the client’s testamentary capacity, the lesser the chance a challenger will sue the will-drafter during or after probate.

“Diligent estate planning discovery minimizes legal malpractice risk.”

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Unfamiliarity with Estate Law

Statutory will-drafting mistakes such as improperly executing a will or omissions when planning the estate often result from a lawyer’s lack of familiarity of probate codes and precedent estate law—some of the most costly legal malpractice claims in Iowa probate litigation have stemmed from attorneys disregarding the legal instruments or the full protections that estate law has to offer testators or lacking the expertise to execute them properly.

Attorneys who are considering drawing up a will—but are unfamiliar with the legalities of probate tax statutes, joint tenant property law, estate accountings, power of attorney assignment and Iowa’s intestate succession codes—might want to consider collaborating with a seasoned probate litigator to help them avoid potential legal malpractice claims later on.

“Partnering with a seasoned probate attorney while drafting wills can prevent professional negligence from happening.”

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Breach of Care to Non-Privy Beneficiaries

Current legal malpractice precedent dates back to an Iowa Supreme Court decision in Brody v. Ruby (Iowa 1978) where the Court held “an attorney is liable for professional malpractice only to a client.”

However, in Schreiner v. Scoville, (Iowa 1987), the Court established a remedy for non-privy beneficiaries after holding “a liability arises when [the] testator’s intent is frustrated and [the] beneficiary’s interest is lost,” and, “in such cases, intended beneficiaries harmed by the lawyer’s negligence [can] maintain a cause of action against a drafting lawyer even though no attorney-client relationship (i.e., privity) existed between them.”

The Court created the new “duty of care” owed by will drafters to non-privy beneficiaries in Schreiner to fill a “loophole in the law,” after realizing such beneficiaries suffer economic losses when lawyers do not execute the testator’s estate plan properly or fail to deliver timely testamentary documents.

  • Will-drafting delays. Attorneys must take into account a testator’s age and health when preparing a will—when the drafter knows (or should have known) the client is elderly or in poor health, the attorney owes non-privy beneficiaries higher duties of care to reasonably prioritize the preparation and execution of the will.

Legal malpractice claims therefore may emerge if non-privy beneficiaries lose their inheritances because an attorney postponed will-drafting activities when the testator’s imminent death was apparent.

  • Improper execution. Along with making sure that testators hold competency to sign their wills, lawyers must also make sure their clients execute their testamentary documents properly.
  • The document must be in writing.
  • The testator must declare the document is his “Last Will and Testament.”
  • The testator must sign the will in front of two competent witnesses.
  • The two witnesses must be at least sixteen years of age, and
  • the witnesses must sign the will in the presence of each other and the testator.

If during will challenge discovery a non-privy beneficiary finds the will-drafter was negligent in executing the testator’s estate planning documents, the heir will most likely add the attorney as a co-defendant to the will contest, holding the drafter personally liable for the lost inheritance.

“Non-privy beneficiaries may sue attorneys who negligently draft wills.”

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Administrative Errors

Even in today’s modern world, typographical errors, misprints, spelling errors and the like appear in estate planning documents when lawyers fail to comprehensively review the final draft.

Misspelling the name of a successor or an organization may exclude the beneficiary from probate. Likewise, making typo errors in the quantity of assets bequeathed to individuals may diminish their rights to take a fair share of estate assets.

Will-drafters can avoid legal malpractice claims arising from administrative errors in the will by having a third party proofread the client’s estate planning documents before sending them off to the will signing ceremony for execution.

“Always have a third-party proofread the will before execution.”

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