In his article, William Sleeth of LeClairRyan has shared some advice for estate planners to minimize their legal exposure in light of the recent Virginia Supreme Court Case: Thorsen v. Richmond Society for the Prevention of Cruelty to Animals. He suggests,
First, estate planing attorneys should consider whether they should take extra measures to save older files in order to attempt to preserve any documented evidence in them that would help rebut a claim by a third party that he was an intended beneficiary of an estate plan. Such a practice could be costly and a hassle, but if it could result in the preservation of documentation that would undercut a claim by a disgruntled beneficiary years down the line, it may be worth it.
Second, estate planning attorneys should be much more circumspect than previously when faced with any allegations of having not properly drafted an estate plan in accordance with the wishes of their now-deceased client. One of the things that undoubtedly contributed to the misfortune of the estate planning attorney in Thorsen was that when he realized that the plan he drafted was inconsistent with the wishes of his now-deceased client, he proactively sought to petition the circuit court to reform the Will (and lost). In doing so, he admitted that the Will he drafted was inconsistent with the wishes of his client, thereby providing an opening for the disgruntled beneficiary (who no longer needed to prove that issue).
Third, estate planning attorneys (and especially those who serve as fiduciaries in their clients’ estate plans) should prepare themselves for the reality that they may see more claims threatened against them or brought against them. This is especially the case in the context where an estate planning attorney agrees to serve as an executor, trustee, trust protector, or agent under a power of attorney. In contexts where an estate planning attorney is serving in a fiduciary capacity, a disgruntled family member may initially have a grievance against the estate planning attorney for an action that he did or didn’t take as a fiduciary. When that disgruntled person seeks out legal counsel to discuss bringing a claim against the fiduciary (who also drafted the estate plan), the legal counsel may likely, in light of Thorsen, also advise the disgruntled person to consider asserting a claim against the fiduciary / estate planner for having allegedly botched the drafting of the estate plan as well.
Click here to view the entire opinion: Risks to Estate Planning Attorneys in Light of the Thorsen Case
Posted by Allison Trupp, Associate Editor, Wealth Strategies Journal