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Recent Case of Interest
Lesson: For Attorney- ask your clients about their health
For client- tell your estate planning attorney about your health.
The Supreme Court of South Carolina ruled that an attorney's failure to draft a will and arrange for its execution before a client's death does not give prospective beneficiaries of the will a cause of action for legal malpractice. Rydde v. Morris (S.C., No. 26619, March 23, 2009).
The attorney was engaged by an elderly woman with lung cancer to draft her estate plan. Five days after the woman returned the general estate planning questionnaire to the attorney, the attorney delivered a durable power of attorney and health care power of attorney, but no Will, to the client. The next day the client was placed on a respirator and entered a drug-induced sleep and never signed the documents. She died six days later, intestate, having never regained consciousness.
Several of the beneficiaries named in the elderly woman’s estate planning questionnaire filed a legal malpractice suit against the attorney alleging that the failure to produce a will and have it signed led to their disinheritance. The potential beneficiaries claimed that the attorney owed them a duty of care as non-client, prospective beneficiaries. The trial court dismissed the case for failure to state a claim and the potential beneficiaries appealed.
The Supreme Court of South Carolina agreed with the dismissal.
The decision does not make it clear whether the attorney knew of the client’s extremely poor health condition. In my opinion, if the attorney knew of the lung cancer and took her time about finishing the Will, the attorney should have had some responsibility. And if the attorney didn't know, was it becuase she didn't ask about the client's health?
Years ago a young couple in apparent great health came to see me to prepare wills. No mention was made of poor health becuase they had no medicial history indicating it. Suddenly, within days of their visit to me and before I could finish their Wills, in a shock to everyone, the young husband died in his sleep of a sudden heart attack. After that incident, I added a question to my intake form asking if the client knows of any health condition that would warrant immediate Will preparation.
If your attorney doesn't ask about your health, you should tell him/her anyway to prevent incidents as discribed above.
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