The Supreme Court of Virginia has decided an interesting case about who can sue an attorney who drafted a will incorrectly.
A woman in Virginia hired an attorney to draft a will for her. She does not appear to have wanted anything too complicated. She just wanted all of her property to be left to her mother and if her mother passed away before her, then she wanted everything to go to a specific charity.
It turns out the testatrix (female maker of a will) was predeceased by her mother. Therefore, the charity expected to get her entire estate when the woman passed away. However, there was an error in the drafting of the will, since it only covered the woman’s personal property.
When the woman passed away, the charity received that property. However, her real property, since it was not covered by the will, had to be distributed by the law of intestate succession, so the charity did not receive it.
The charity sued the attorney as the Wills, Trusts & Estates Prof Blog discusses in “Case Summary on Will Beneficiary’s Cause of Action Against Drafting Attorney.”
The charity won the case at the trial court level. The case made its way to the Virginia Supreme Court on the issue of whether the charity could sue the attorney. The court ruled that it could, on the grounds that an oral contract existed between the woman and the attorney and that Virginia law allows standing for a third-party beneficiary of an oral contract to sue.
The court also ruled that the statute of limitations began to run when the woman passed away and not when the will was drafted.
This case is more than just a cautionary tale for attorneys to be careful when drafting wills. It also serves as an example that people who are harmed by improper drafting, might have a cause of action against the drafting attorney that they can pursue.
Reference: Wills, Trusts & Estates Prof Blog (Dec. 19, 2016) “Case Summary on Will Beneficiary’s Cause of Action Against Drafting Attorney.”
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