Brett Herbert, of LeClair Ryan provides an update about a beneficiary’s ability to successfully sue estate lawyers in Virginia for drafting errors. His article begins as follows:
Back in the summer I wrote a post discussing the impacts of the Thorsen decision by the Supreme Court of Virginia. In Thorsen, a testator wanted to leave her estate to a charity if her daughter did not survive her. The lawyer erred in drafting the will. When the testator died several years later (with her daughter having predeceased her), the testator’s property went to other people, contrary to her intentions. The charity, the intended beneficiary, sued the lawyer, asserting breach of contract for legal services.
Thorsen was notable in that it held that Virginia common law permits intended third party beneficiaries (even contingent beneficiaries) of contracts to sue to enforce a contract for legal services and even a will itself. Thorsen also held that the statute of limitations for a legal malpractice claim (relating to the drafting of a will) did not begin to run when the will was drafted by the lawyer. Instead, the statute of limitations began to run when the testator died, which, in Thorsen, was about five years after the will had been written. Ultimately, the Supreme Court of Virginia affirmed a monetary judgment of over $600,000.00 against the lawyer.
Thorsen was a serious wake-up call to estate planners in Virginia and beyond. It also further opened the door for intended (and disappointed) will beneficiaries to sue the will-drafting lawyer. As we thought may happen, the General Assembly of Virginia took action during its recent session to fix the Thorsen decision legislatively.
See full article at: UPDATE: Can an Intended (and Disappointed) Beneficiary Still Sue a Will’s Drafter?: The General Assembly of Virginia Enacts a Statutory Fix to the Thorsen Decision | LeClairRyan – JDSupra
Posted by Lewis J. Saret, Co-General Editor, Wealth Strategies Journal.