South Carolina's highest court holds that an intended beneficiary of a will or trust can sue the drafting attorney for legal malpractice. Fabian v. Lindsay (S.C., No. 27460, Oct. 29, 2014).
Denis Fabian hired attorney Ross Lindsay to draft a trust agreement. Mr. Fabian's wife was the beneficiary of the trust. After Mrs. Fabian died, one half of the trust was supposed to be split between Mr. Fabian’s niece, Erika Fabian, and her cousin. However, Mr. Lindsay drafted the trust in a way that gave the entire half to Ms. Fabian's cousin.
Ms. Fabian sued Mr. Lindsay and his law firm for legal malpractice. The trial court granted the firm's motion to dismiss, ruling that the firm was not in privity with Ms. Fabian, so it did not owe her a duty of care. Ms. Fabian appealed, arguing that beneficiaries should have the right to sue for legal malpractice because without that right estate planning attorneys are immunized from liability.
The South Carolina Supreme Court reverses and remands, holding that it affirmatively recognizes "causes of action both in tort and in contract by a third-party beneficiary of an existing will or estate planning document against a lawyer whose drafting error defeats or diminishes the client's intent." The court notes that "[r]ecovery under either cause of action is limited to persons who are named in the estate planning document or otherwise identified in the instrument by their status."
For a Florida Probate Lawyers blog analysis of the ruling in the context of rulings in other states, click here.
For the full text of this decision, go to: https://www.judicial.state.sc.us/opinions/HTMLFiles/SC/27460.pdf
Our thanks to Myrtle Beach, S.C., ElderLawAnswers member attorney Kathryn Cook DeAngelo for alerting us to this decision.
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