When a lawyer botches a will or trust, the people who get hurt are usually the ones who were supposed to inherit. The client is dead. The mistake often doesn’t surface until the estate is in probate, and by then the money is going somewhere the client never intended.
So can a disappointed beneficiary sue the lawyer who drafted the estate plan? In Texas, the answer is generally no. Most other states say yes. But even in the states that say yes, a beneficiary still has to prove the lawyer was actually negligent, and some drafting mistakes are hard to call negligence at all.
The case that started the national trend is Lucas v. Hamm, No. S.F. 20269, 56 Cal. 2d 583 (Cal. Sept. 5, 1961). The California Supreme Court had to decide two things: whether beneficiaries can sue the testator’s lawyer at all, and whether a will provision that ran afoul of the rule against perpetuities was malpractice. The Texas Supreme Court later looked at Lucas and chose not to follow it. Both halves of the case matter to Texas families and Texas estate planners.
What Happened in Lucas v. Hamm?
Eugene H. Emmick hired attorney L. S. Hamm to prepare his will and codicils. Paragraph Eighth of the will put the residue of the estate in trust, and Robert Lucas and the other plaintiffs were to receive 15 percent of that residue. The trust was set to end on a specific timetable: it would “cease and terminate at 12 o’clock noon on a day five years after the date upon which the order distributing the trust property to the trustee is made by the Court having jurisdiction over the probation of this will.”
After Emmick died, the will and codicils were admitted to probate. Hamm stayed on as counsel of record for the executors. He then told the plaintiffs, in writing, that the residuary trust was invalid under California’s rule against perpetuities and its statutes on restraints on alienation. Unless they settled with Emmick’s blood relatives, he said, they would lose their entire share. The plaintiffs settled. According to their complaint, they ended up with $75,000 less than they would have received if the will had been drafted the way Emmick instructed.
There was a second problem. Several of Emmick’s relatives had filed a will contest claiming he lacked testamentary capacity. Hamm and the executors settled that contest for $10,000 from the estate in exchange for releases. Those same relatives later joined the attack on the residuary trust. The plaintiffs claimed that if Hamm had drafted broader releases, the relatives couldn’t have done that, and the plaintiffs would have received another $15,000.
The plaintiffs sued Hamm for negligence and breach of contract. The trial court sustained a demurrer without leave to amend and dismissed the case. The plaintiffs appealed.
Who Can Sue the Lawyer Who Drafted a Will?
To understand why the plaintiffs had a problem before they ever got to the merits, we first have to look at the privity rule. Privity just means a direct relationship, like the one between a lawyer and a client. Under the traditional rule, a lawyer owes a duty of care only to the client. Anyone else, including the people named in the client’s will, has no claim.
California had followed that rule since Buckley v. Gray, decided in 1895. In Buckley, a lawyer made a mistake drafting a will, and the court held he was not liable to the beneficiary who lost out. In Lucas, the California Supreme Court overruled Buckley.
The court relied on its earlier decision in Biakanja v. Irving, where a notary public prepared a will and failed to have it properly witnessed. The notary was held liable to the intended beneficiary. Whether someone outside the contract can sue, the court said, is a policy question that turns on several factors: how much the transaction was meant to affect the plaintiff, how foreseeable the harm was, how certain it was that the plaintiff was hurt, how closely the defendant’s conduct was tied to the injury, and the policy of preventing future harm.
Those factors all pointed toward liability. The whole point of hiring a lawyer to write a will is to get property to the people named in it. If the gift fails, the harm to them is obvious. And if those beneficiaries can’t sue, the court said, “no one would be able to do so.” The court also rejected the argument that liability would put an undue burden on the profession, noting that a contrary rule “would cause the innocent beneficiary to bear the loss.” It held that beneficiaries can also sue as third-party beneficiaries of the contract between the testator and the lawyer, since the testator plainly intended to benefit them.
Texas went the other way. In Barcelo v. Elliott, No. 95-0341, 923 S.W.2d 575 (Tex. May 10, 1996), the Texas Supreme Court cited Lucas as part of the majority of states that had relaxed the privity barrier, and declined to join them. The court worried that disappointed heirs would sue over plans that reflected what the client actually wanted, and that lawyers would end up with divided loyalties. It said: “We believe the greater good is served by preserving a bright-line privity rule which denies a cause of action to all beneficiaries whom the attorney did not represent.” It held that a lawyer who drafts a will or trust “owes no professional duty of care to persons named as beneficiaries under the will or trust.”
That doesn’t mean a negligent Texas estate planner can never be sued. In Belt v. Oppenheimer, Blend, Harrison & Tate, Inc., No. 04-0681, 192 S.W.3d 780 (Tex. May 5, 2006), the Texas Supreme Court held “there is no legal bar preventing an estate’s personal representative from maintaining a legal malpractice claim on behalf of the estate against the decedent’s estate planners.” So in Texas the claim belongs to the estate, through its executor or administrator, not to the individual beneficiaries.
Why Wasn’t the Perpetuities Mistake Malpractice?
Winning the right to sue didn’t help the plaintiffs in Lucas. The court went straight on to hold that “an attorney is not liable either to his client or to a beneficiary under a will for errors of the kind alleged.”
The standard is ordinary competence, not perfection. A lawyer must use the skill and care that lawyers of ordinary skill commonly use. He isn’t an insurer of the validity of the documents he drafts, and “he is not liable for being in error as to a question of law on which reasonable doubt may be entertained by well-informed lawyers.”
Then there is the rule against perpetuities itself. In plain terms, it requires that an interest in property vest, if it is going to vest at all, within 21 years after the death of someone alive when the interest was created. The trap is that the rule looks at what could possibly happen, not what is likely to happen. If there is any conceivable chain of events in which the interest vests too late, the gift can fail.
The court pointed out how badly this rule has tripped up lawyers for generations. It quoted Professor Gray, the leading authority on the subject: “There is something in the subject which seems to facilitate error.” Gray added that few lawyers who draft wills have not at some point “fallen into the net which the Rule spreads for the unwary,” or come close. The court also cited another scholar’s description of the rule as a “technicality-ridden legal nightmare.”
Emmick’s trust was set to end five years after the probate court’s order distributing the property to the trustee. The only way that could violate the rule was if that distribution order were delayed longer than a life in being plus 16 years (the 21-year period minus the five years in the will). That possibility was, in the court’s words, “so remote and unlikely” that a lawyer of ordinary skill might well have missed it. The court didn’t even decide whether the trust was actually invalid. Either way, the error didn’t show negligence or breach of contract.
The release claim failed too. The relatives had settled their capacity contest for $10,000, and the releases did end that contest. Nothing in the complaint said the relatives would have given up all their other claims against the will for the same money. At most, Hamm had a duty to ask for broader releases, and the plaintiffs never alleged he failed to ask.
The Takeaway
Lucas opened the door to beneficiary lawsuits against drafting lawyers in California, and many states followed. Texas did not. Here, a named beneficiary generally can’t sue the testator’s lawyer, and a malpractice claim has to be brought by the estate’s personal representative under Belt. That is one more reason the choice of executor matters.
The second half of Lucas matters everywhere. A lawyer isn’t automatically negligent because a provision turns out to be defective, especially in an area as confusing as perpetuities. Texas has softened the risk for trusts. Under Texas Property Code § 112.036, an interest in a trust that becomes irrevocable on or after September 1, 2021, has until the later of 300 years or the traditional 21-years-after-a-life-in-being period to vest. And Property Code § 5.043 directs courts to reform or construe an interest that violates the rule “to effect the ascertainable general intent of the creator of the interest.” Older trusts and gifts outside a trust can still run into the rule, though. If a trust or will has delayed distribution dates or long-running contingencies, have it reviewed while the person who signed it is still around to fix it.
Our Dallas Probate Attorneys provide a full range of probate services to our clients, including helping with estate planning malpractice concerns, trust and will drafting problems, and probate litigation when an estate plan fails. Probate is what we do. Affordable rates, fixed fees, and payment plans are available. We provide step-by-step instructions, guidance, checklists, and more for completing the probate process.We have years of combined experience we can use to support and guide you with probate and estate matters.Call us today for a FREE consultation.
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