THE NEW HAMPSHIRE Supreme Court last month issued Sisson v. Jankowski, answering a question certified by the US District Court for the District of New Hampshire. Recognizing the conflict created by imposing a duty of care to an intended beneficiary of an unexecuted will, the NH Supreme Court concluded that an attorney did not owe a duty to a will beneficiary to have a will executed promptly.

In Sisson, the plaintiff alleged the decedent retained an attorney and her firm to prepare a will and other estate documents. The plaintiff claimed the decedent did not want to die intestate and did not want any of his assets to pass to his estranged brother. The will was drafted expressing the decedent's intent to pass the entire estate to the plaintiff. The decedent subsequently died intestate and the estate was divided among the plaintiff, the decedent's estranged brother, and the children of another (deceased) brother. The plaintiff sued the attorney and her firm claiming legal malpractice.

The plaintiff alleged the attorney and her firm owed him a duty as the "intended beneficiary" of the decedent. In Simpson v. Calivas, 139 N.H. 1, 4 (1994), the Court previously held that an attorney who drafts a will owes a duty to beneficiaries to draft the will non-negligently. The question presented by Sisson was whether that duty encompassed the obligation to make sure a will was executed promptly.

In the court's most recent decision, issued Nov. 15, the Court noted that a number of courts in other jurisdictions had declined to extend that duty. These courts reasoned that imposing a duty to an intended beneficiary of an unexecuted will would interfere with the attorney's obligation of undivided loyalty to his or her client, the testator or testatrix. The New Hampshire Supreme Court observed that attorneys might be forced to pressure clients to execute wills quickly, without sufficient time for reflection. Accordingly, the Court joined the majority of jurisdictions in ruling that attorneys do not have a duty to prospective will beneficiaries to have wills executed promptly.

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