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Estate Planning Attorneys Beware — Massachusetts

last-will-and-testament-estate-planning-attorney-Wellesley-MA-02481By Harry S. Margolis

Estate planning attorneys in Massachusetts have long been protected from liability for their mistakes by the fact that the people usually harmed are the potential beneficiaries of the estate, rather than the client for whom they drafted the will or trust. Beneficiaries who lose out have no standing to bring a malpractice action against the attorney because they didn’t hire the allegedly negligent lawyer in the first place.


But now the Massachusetts Appeals Court has said that while a beneficiary may have no malpractice claim in the absence of an attorney-client relationship, he can sue as the intended third-party beneficiary of the contract between the attorney and the decedent to create an estate plan.

In Fortier v. Sullivan (Mass. App. No. 12-P-231, Dec. 11, 2012), Albert J. Fortier claims that Attorney John J. Sullivan made a mistake in preparing a will for Susan S. Pond by failing to exercise her right to direct trust funds to Fortier consistent with the rest of her estate plan.

The Appeals Court confirms the longstanding doctrine that Fortier cannot make a malpractice claim against Sullivan as his attorney. But the Court then considers Fortier’s argument “that he falls with a limited range of non-clients to whom a duty of care is nevertheless owed.”

It finds that Fortier’s claim that he was “to be the intended beneficiary of the legal services rendered by Sullivan to Pond [is] a fact substantiated by Sullivan’s own admissions.” The Court rejects Sullivan’s argument that the contract cannot be enforced because it was not in writing and remands the case to the trial court to pursue the contract claim.

While the clear evidence of a client’s intent may not always be as clear as it appears to be in this case, attorneys and malpractice insurers in Massachusetts may no longer rest easy relying on the longstanding protection against claims by potentially harmed beneficiaries. One question attorneys should look at is whether a claim under contract is covered by their insurance, since the Court was quite clear that this is not a case of malpractice.

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