In December 1998, Dr. Warren Sisson retained attorney Shari Jankowski to prepare his will and other estate planning documents. Dr. Sisson reportedly told Ms. Jankowski that he did not want to die intestate and that he intended his entire estate to pass to one of his brothers, Thomas K. Sisson, and that none of the estate should pass to his other brother. Ms. Jankowski prepared a will and other estate planning documents and, in mid-January 1999, mailed them to Dr. Sisson. In late January, Thomas Sisson told Ms. Jankowski that Dr. Sisson wanted to finalize his estate planning documents quickly because of his deteriorating condition. On February 1, 1999, Ms. Jankowski visited Dr. Sisson in a nursing home. Dr. Sisson executed all of the documents except his will because he wished to insert a clause for a contingent beneficiary in the event Thomas Sisson predeceased him. Rather than modifying the will immediately to include a handwritten contingent beneficiary clause, modifying it at her office and returning later that day, or advising Dr. Sisson to execute the will as drafted to avoid the risk of dying intestate and later drafting a codicil, Ms. Jankowski left without obtaining Dr. Sisson's signature to the will.
When she returned three days later with the revised will, Ms. Jankowski determined that Dr. Sisson was not competent to execute it and left without securing his signature. Dr. Sisson died intestate on February 16, 1999, and his other brother received one-third of his estate. Thomas Sisson brought legal malpractice claims against Ms. Jankowski and her firm, alleging that they owed him a duty of care because he was the intended beneficiary of their relationship with Dr. Sisson. He asserted that they were negligent because they failed to have Dr. Sisson execute his will promptly and to advise him on February 1 of the risk of dying intestate if he did not execute the draft presented at that meeting. Ms. Jankowski and her firm countered that recognizing a duty to third parties for the failure to arrange for the timely execution of a will potentially would undermine the attorney's ethical duty of undivided loyalty to the client.
The Supreme Court of New Hampshire agrees with the attorneys, concluding that '[c]reating a duty, even under the unfortunate circumstances of this case, could compromise the attorney's duty of undivided loyalty to the client and impose an untenable burden upon the attorney-client relationship. To avoid potential liability, attorneys might be forced to pressure their clients to execute their wills summarily, without sufficiently reflecting upon their estate planning options.' The court observes that the majority of courts confronting this issue have ruled similarly.
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