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S.C. Supreme Court: Trust and Estate Planning Malpractice

Now third-party beneficiaries in estate planning cases can sue lawyers for malpractice when there has been negligence or other legal malpractice.


S.C. Supreme Court clears way for trust and estate planning lawyers to be held accountable for mistakes and malpractice

October 30, 2014

The state Supreme Court is making it possible for people who were cheated out of their inheritance because of a lawyer's mistakes to hold that lawyer accountable. In a unanimous decision, the court ruled this week that third-party beneficiaries in estate planning cases can sue lawyers for malpractice when a negligently drawn will erroneously excludes them from benefits they should have received or diminishes their inheritance. Previously, third parties who have been damaged by mistakes in a will have had no recourse against the lawyer who drafted the document. That's because S.C. courts only allowed legal malpractice cases to be filed by a lawyer's client. In estate planning cases, however, mistakes often aren't realized until after the lawyer's client has died. "Individuals in these circumstances, who before now didn't have a way to correct an error, now have a chance," said Thomas Pendarvis, the Beaufort lawyer who represented Erika Fabian, who alleges she was cheated out of millions of dollars because of a lawyer's error in drafting her uncle's will. Fabian's case has set a precedent for how legal malpractice cases will be handled going forward. "It's a good feeling to not only help my client, but to know that this is going to help others have their day in court as well," Pendarvis said. The justices, in this week's ruling, said they want to fix a legal loophole that has allowed estate planning lawyers to escape responsibility for their actions. "Retaining strict privity in a legal malpractice action for negligence committed in preparing will or estate documents would serve to improperly immunize this particular subset of attorneys from liability for their professional negligence," Justice Donald Beatty wrote in an opinion that affects all such cases currently under appeal and going forward. "Joining the majority of states that have recognized causes of action is the just result." Only those people who are named in a will or estate planning document or who are identified by some other term -- for example, "my brother's children" -- would be allowed to bring a malpractice lawsuit. The court's decision stems from a Georgetown County case involving a 1990 trust agreement written by lawyer Ross Lindsay III for Denis Fabian, who died a decade later at the age of 90. According to the agreement, shares of the $13 million estate were to be divided following the death of Fabian and his wife, Marilyn, between his wife's two daughters from a previous marriage and his brother, Eli Fabian. The document also states that if Eli Fabian were to die before Denis Fabian, then his one share would be divided between Eli Fabian's daughter and Erika Fabian, another niece. Eli Fabian outlived his brother by just a few weeks. Lindsay told Erika Fabian that, under his interpretation of the trust agreement he authored, Eli Fabian's daughter would be the only person to get the brother's share because Eli Fabian had outlived Denis Fabian. Erika Fabian contends that the agreement should have been based on whether Eli Fabian outlived both his brother and his brother's wife, but erroneously only named Denis Fabian. "In addition, [Lindsay] knew that Fabian wanted Eli's share of the trust to pass to the two named nieces if Eli was not alive at the time of distribution to receive his share," court documents state. "However, the use of the word 'me' in the last sentence has effectively defeated her uncle's intentions by inadvertently disinheriting her." Lindsay, who has denied any liability, could not be reached for comment on Thursday. Eli Fabian's daughter -- "who stood to reap the windfall of receiving a double share," according to court documents -- has "strenuously opposed" any changes to the estate document and has fought Erika Fabian in court over who should get the money. Erika Fabian sued Lindsey and his law firm for legal malpractice in 2012, but Judge Benjamin Culbertson dismissed the case because state law did not allow such claims in the absence of an attorney-client relationship. The state Supreme Court's decision sends the case back to the circuit court level for further litigation. Pendarvis said his client still must convince a jury that her uncle intended for her to share in the estate and that Lindsay's alleged mistake caused her to be excluded. No trial date has been set.

Originally posted by David Wren for
Trust and Estate Planning Malpractice Lawyers, Ball and Bonholtzer, Los Angeles

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