How to Sue a Lawyer for Estate Planning Malpractice in Florida

When a lawyer mishandles the complex responsibilities involved in drafting wills, establishing trusts, or managing asset distribution, the consequences can reshape a family’s financial future. This kind of professional failure is known as estate planning malpractice. It occurs when an attorney’s neglect or misconduct in preparing an individual’s estate plan causes financial harm—either directly to the client, to the intended beneficiaries, or both.  As a form of inheritance litigation, an attorney who does inheritance litigation should be consulted.

In Florida, attorneys handling estate plans carry a clear legal duty to provide competent advice, draft documents accurately, and ensure the client’s intentions are fully reflected and enforceable under the law. This includes adhering to current statutes, applying tax strategies intelligently, and avoiding conflicts of interest.

Not every disappointing result, though, qualifies as malpractice. If a beneficiary is unhappy with the amount they receive, or if disagreements erupt among heirs, that still doesn’t establish grounds for a lawsuit. Malpractice requires more than dissatisfaction; it demands proof of a precise breach of professional duty that directly causes identifiable and measurable damages.

Florida’s Legal Structure for Holding Estate Planning Lawyers Accountable

Overview of Legal Malpractice Laws in Florida

Florida law defines legal malpractice as professional negligence by a licensed attorney that causes measurable harm to a client. The framework is rooted in tort law, specifically professional negligence, which requires proving duty, breach, causation, and damages. Legal malpractice lawsuits in Florida follow the principles laid out in both case law and statutory law, with the Florida Supreme Court providing precedent and the Florida Bar setting professional conduct standards.

Chapter 95 of the Florida Statutes governs time limitations for legal actions, including malpractice claims, while the Florida Rules of Professional Conduct establish attorneys’ obligations to their clients. Courts rely on these combined sources when evaluating whether an attorney failed to meet the standard of care expected of a reasonably competent lawyer handling a similar matter.

How Florida Addresses Malpractice in Estate Planning Specifically

In estate planning, malpractice lawsuits surface when attorneys make errors that directly impact the distribution of a client’s assets or the administration of an estate. This might involve drafting a will that does not meet statutory requirements or failing to consider the implications of tax laws, which leads to unintended financial consequences.

Florida courts have recognized that estate planning malpractice affects not only the testator (the person creating the estate plan) but also their intended beneficiaries. While traditionally only the client could sue for malpractice, Florida decisions—such as Espinosa v. Sparber, Shevin, Shapo, Rosen & Heilbronner, 612 So.2d 1378 (Fla. 1993)—allow intended beneficiaries to bring claims under limited circumstances. The ruling established that when the negligence is clear and the damage is direct, third-party beneficiaries may have standing to sue.

Attorneys practicing estate law must be especially diligent, as even minor drafting or advisory errors can have irreversible consequences. Florida’s jurisprudence emphasizes that foreseeability of harm to intended beneficiaries forms a central consideration in deciding malpractice liability in estate matters.

Recognizing the Red Flags: Common Causes of Estate Planning Malpractice

What You Must Prove to Win an Estate Planning Malpractice Case in Florida

Duty: Establishing the Attorney-Client Relationship

The first required element in a Florida legal malpractice claim is the existence of a duty. This duty arises from a formal or implied attorney-client relationship. Once a lawyer agrees to provide legal services, they’re legally bound to exercise the skill, care, and diligence that reasonably competent attorneys would use under similar circumstances. In estate planning, this includes responsibilities like properly preparing wills and trusts, advising on tax implications, and ensuring compliance with Florida probate statutes.

Breach of Duty: Deviations From the Standard of Care

A plaintiff must next show that the attorney breached this duty. This breach can result from substantive legal errors—such as drafting an unenforceable trust—or from procedural mishandling, such as failing to execute a client’s will correctly under Florida law. A breach might also stem from poor communication or failure to follow a client’s explicit instructions. Expert testimony usually plays a key role in establishing what the standard of care should have been and how the attorney failed to meet it.

Causation: Connecting the Breach to Specific Harm

Not every mistake leads to liability. Malpractice requires proving causation—more specifically, proximate cause. A plaintiff must demonstrate that the lawyer’s breach directly caused a negative outcome that would likely not have occurred with competent representation. For example, if a poorly drafted will leads to a successful challenge and disinherits the intended beneficiaries, the connection between the breach and harm becomes legally actionable. Florida courts typically apply a “but for” test: but for the attorney’s misconduct, the damage would not have happened.

Damages: Demonstrating a Real and Measurable Loss

Lastly, actionable malpractice demands actual damages. These may include:

• Economic losses, such as lost inheritance or increased estate taxes.
• Corrective legal costs—expenses incurred to fix or litigate issues arising from the malpractice.
• Consequential damages that can be traced directly to the attorney’s error.

Florida law doesn’t allow compensation for speculative or emotional harm in legal malpractice cases. Courts require documentation—financial statements, court records, or third-party appraisals—to support damage claims.

Florida’s Legal Deadline: Statute of Limitations for Estate Planning Malpractice

A lawsuit for legal malpractice in Florida, including those involving estate planning, must be filed within a specific time frame. Under Florida Statutes § 95.11(4)(a), the statute of limitations for legal malpractice is two years. This ticking clock begins when the cause of action accrues—meaning when the client either knew, or reasonably should have known, that malpractice had occurred.

When Does the Statute Begin to Run?

The starting point isn’t always the date of the lawyer’s mistake. In estate planning cases, harm often becomes apparent only after a triggering event—such as the death of the testator or the probate of a contested will. Florida courts apply the “discovery rule” to determine accrual. This means the statute of limitations typically does not begin until the client discovers, or should have discovered using reasonable care, the alleged negligence and resulting damage.

For example, if an attorney fails to include a critical tax-saving provision in a trust, and the error is uncovered only years later during estate administration, the two-year window may only start at the discovery point, not when the trust was originally drafted.

Delays, Exceptions, and the Statute of Repose

Florida law also imposes a strict upper deadline known as a statute of repose. Regardless of when the malpractice is discovered, no legal malpractice suit can be filed more than four years after the date of the attorney’s last act of negligence. This four-year cutoff acts as a hard limit—if it passes, the right to sue is extinguished entirely.

There are rare exceptions. If fraud, concealment, or intentional misrepresentation delayed the discovery of the malpractice, Florida courts may toll the limitation period. But this must be substantiated with specific evidence; general dissatisfaction or misunderstanding won’t suffice.

• Time Limit to Sue: 2 years from when the malpractice is discovered or should reasonably have been discovered.
• Maximum Time Regardless of Discovery: 4 years from the date of the wrongful act (statute of repose).
• Possible Extension: Only in cases of fraud or intentional concealment.

Have those years already lapsed? Check the timing of the lawyer’s actions and the moment the potential damage became clear. Timing determines whether a valid claim still exists—or if legal redress is no longer available.

Establishing Lawyer Negligence in Florida Estate Planning Cases

What Constitutes Negligence in Estate Plans

Negligence in estate planning occurs when an attorney fails to exercise the level of skill and care that a reasonably competent lawyer would provide under similar circumstances. In Florida, this includes not only errors in drafting documents but also omissions in addressing the client’s stated objectives.

Courts have found actionable negligence in situations where lawyers:

• Incorrectly drafted a will or trust, causing its instructions to be invalid.
• Failed to update documents to reflect significant life changes such as divorce, remarriage, or the birth of children.
• Omitted provisions that created unintended tax liabilities or disqualified the client from public benefits.
• Did not ensure proper execution of documents, leading to legal disputes or rejection of the estate plan in probate court.
• Neglected to advise clients about more appropriate planning options specific to their financial or familial circumstances.

Negligence doesn’t require intent. A simple oversight, if unreasonable and damaging to the client or beneficiaries, qualifies under Florida law. The Florida Supreme Court clarified in Espinosa v. Sparber, Shevin, Shapo, Rosen & Heilbronner, 612 So. 2d 1378 (Fla. 1993), that attorneys can be held liable to intended estate beneficiaries when substandard legal services deprive them of their inheritance.

Evidence Required to Substantiate Negligence Claims

Courts require a factual showing that the attorney breached their duty and that this breach caused a quantifiable injury. Plaintiffs must provide clear, credible documentation and expert testimony that establishes four things:

• Existence of an attorney-client relationship: Engagement letters, billing records, or testimonies showing the lawyer was retained specifically for estate planning.
• Breach of the standard of care: An expert witness—typically another estate planning attorney—must testify that the lawyer’s work fell below professional standards.
• Causation: The plaintiff needs to show that the mistake directly led to the harm, such as diminished inheritance or a failed estate goal.
• Harm: There must be tangible damages—monetary loss, increased tax burdens, or legal costs resulting from probate disputes or litigation among heirs.

Documentary evidence—such as draft versions of wills, trust documents, internal emails, and client instructions—will support the narrative. So will beneficiary depositions, estate tax filings, and probate litigation records. Without this foundation, courts are unlikely to move forward. Simply disagreeing with how an estate plan was structured will not suffice; the law demands provable missteps that materially affected the estate’s outcome.

Understanding the Types of Damages in Legal Malpractice Cases

When a Florida attorney mishandles an estate plan, the fallout affects more than just documents. The damage ripples through finances, family dynamics, and sometimes generations of planning. In legal malpractice claims, the recoverable damages reflect this complexity. Florida courts recognize several categories of compensable harm in these cases.

Economic Damages: Calculating Tangible Financial Losses

Economic damages form the foundation of most malpractice recoveries. These represent the direct financial impact of an attorney’s negligence. In estate planning cases, those losses may include:

• Increased tax liability: If a negligent estate plan results in unnecessary estate or income taxes, those losses become compensable.
• Lost inheritance: Beneficiaries may lose a portion—or all—of their intended inheritance if a will or trust is invalidated due to attorney error.
• Additional legal or probate costs: When mistakes force heirs into litigation or extended probate proceedings, those expenses qualify as economic damage.
• Property misdistribution: If assets go to unintended parties due to planning errors, the rightful recipients have a valid claim for monetary compensation equal to the lost asset value.

Courts require plaintiffs to show the loss with specificity. That might involve hiring financial experts to trace missed tax savings or to quantify lost trust distributions.

Non-Economic Damages: Addressing Intangible Harm

Although harder to measure, non-economic damages are also available in certain legal malpractice cases. These encompass the emotional strain and relational fallout that often follow estate planning errors. In Florida, courts have awarded non-economic damages for:

• Emotional distress: A disinherited heir pursuing a claim may recover for the mental anguish suffered due to the attorney’s malpractice.
• Loss of familial relationships: Poorly executed estate plans can trigger bitter disputes between siblings or other beneficiaries, and courts have considered the value of those losses in damage assessments.

However, these damages require a heightened showing—mere annoyance or disappointment rarely meets the bar. Clear evidence of sustained psychological harm or paper trails showing reputational damage may be necessary.

Punitive Damages: Reserved for Egregious Misconduct

Florida law allows punitive damages in legal malpractice cases, but only under specific conditions. Unlike compensatory damages, which remedy actual loss, punitive damages punish the attorney for particularly reckless or malicious behavior. To justify this level of remedy, claimants must prove:

• Intentional misconduct: The lawyer knowingly engaged in behavior that would likely cause harm—such as forging a client’s signature or intentionally leaving out critical provisions from a will.
• Gross negligence: The conduct exhibits a conscious disregard or indifference to the client’s rights, such as preparing legal documents while under the influence of drugs or alcohol.

Florida Statutes §768.72 requires plaintiffs seeking punitive damages to present a “reasonable showing by evidence in the record” before that claim can be pursued at trial. Courts also cap the award based on a formula involving the amount of compensatory damages, unless intentional harm is clearly proven.

Not every error warrants punitive damages. When the mistake stems from judgment error or oversight, courts restrict recovery to economic and, in some cases, non-economic losses alone.

The Role of Legal Ethics in Malpractice Claims

Why Ethics Shape the Foundation of Legal Accountability

Legal ethics in Florida serve as more than a professional guideline—they form a measurable standard that courts use when evaluating claims of estate planning malpractice. The Florida Rules of Professional Conduct, outlined in Chapter 4 of the Rules Regulating The Florida Bar, detail the obligations attorneys owe to their clients, including competence, diligence, and loyalty. Violations of these rules don’t just invite disciplinary action; they often establish a factual basis for proving malpractice in court.

How Ethical Violations Influence Malpractice Claims

Courts do not treat ethical breaches as malpractice per se. However, when a client sues an estate planning attorney for malpractice, ethical violations become critical evidence to show that the attorney failed to meet the required standard of care. For example, Rule 4-1.1 of the Florida Bar’s rules mandates legal competence. An attorney who fails to understand basic estate planning instruments—such as durable powers of attorney or revocable trusts—may have breached both ethical standards and the legal duty of care.

Consider the scenario where a lawyer represents multiple family members in a will or trust arrangement without clear conflict waivers. This could violate Rule 4-1.7 concerning conflicts of interest and also give rise to malpractice claims, especially if the estate is later contested and found invalid due to undue influence or lack of capacity. That ethical breach doesn’t just raise red flags—it directly supports the argument that negligence occurred.

Key Ethical Duties That Frequently Overlap With Malpractice Claims

• Duty of Competence: Failing to stay current on changes in Florida probate law or estate tax regulations can result in avoidable losses, triggering both an ethics grievance and a malpractice suit.
• Duty of Communication: Ignoring client communications or failing to explain the implications of legal strategies could breach Rule 4-1.4 and undercut a defense against negligence.
• Confidentiality Breaches: In estate planning, disclosing sensitive client information—especially details that affect inheritance—can violate Rule 4-1.6 and open the door to civil liability if harm results.

Evidence of ethical misconduct, especially when documented through grievance records or correspondence, strengthens the claimant’s position. While disciplinary actions by The Florida Bar operate separately from civil suits, findings in Bar proceedings are admissible and can carry persuasive weight in court. Jurors and judges look to these established rules not only as a code of honor, but as a measurement of professional failure with real-life consequences.

How the Litigation Process Works in a Florida Estate Planning Malpractice Case

Steps to Initiate a Legal Malpractice Lawsuit

Filing a malpractice lawsuit against an estate planning lawyer in Florida begins with establishing a valid claim. The plaintiff must first demonstrate that the attorney-client relationship existed, which creates a duty of care. From there, the process unfolds through several distinct phases:

• Initial Consultation with a Malpractice Attorney: A review of the facts and supporting documentation uncovers whether the error or omission falls below the standard of care.
• Pre-suit Investigation: Florida requires a preliminary assessment of the potential claim. This includes client interviews, consultations with expert witnesses, and a detailed review of estate planning documents.
• Filing the Complaint: Once grounds are established, the plaintiff files a complaint in the appropriate Florida circuit court. This formal document outlines allegations, identifies the parties, and specifies the damages.
• Service of Process: The defendant lawyer receives legal notice of the suit, triggering the response deadline.

What Happens During Discovery

Discovery has a pivotal role in legal malpractice litigation. This is where both sides obtain evidence needed to support or refute claims. The process includes:

• Interrogatories: Written questions that each party must answer under oath. These often explore communication between the lawyer and client, asset valuations, and the lawyer’s reasoning behind the drafting choices.
• Requests for Production: Both parties exchange documents — email records, original wills, trust documents, client notes, and timelines become central pieces of the case.
• Depositions: Oral testimonies under oath, often involving the lawyer, clients, heirs, expert witnesses, and financial advisors. Cross-examinations test credibility and expose inconsistencies.
• Expert Testimony: Legal experts explain the standard of care and how the attorney allegedly failed to meet it. Financial or estate planning experts may also quantify damages.

Discovery sets the tone for potential settlement or escalation to trial. If evidence clearly shows negligence and resulting harm, defendants may be more inclined to negotiate.

Trial Procedures and What to Anticipate

If the case proceeds to trial, the courtroom phase begins. In Florida, most legal malpractice cases are decided in civil court before a judge or jury, depending on the plaintiff’s choice. Here’s what happens in a typical trial:

• Jury Selection: If requested, attorneys from both sides participate in voir dire, selecting jurors capable of impartial evaluation of legal complexities.
• Opening Statements: Each side presents an overview of their arguments, setting the narrative for the trial.
• Presentation of Evidence: The plaintiff introduces documentation, expert analysis, and witness testimony to prove negligence, causation, and damages.
• Defense Arguments: The attorney under scrutiny may assert that reasonable judgment was exercised, that no direct harm occurred, or that damages were caused by intervening factors.
• Closing Arguments: Each side summarizes their case, highlighting key testimony and discrediting opposing points.
• Jury Deliberation and Verdict: After reviewing the evidence, the jury decides whether malpractice occurred and determines liability and damages.

Depending on the outcome, post-trial motions or appeals may follow. However, a clear, well-documented case with compelling expert support often leads to resolution before trial. Litigants who prepare thoroughly during discovery strengthen their position before ever setting foot in court.

Exploring Mediation and Arbitration in Legal Malpractice Disputes

Structured Alternatives to Lawsuits

When a dispute arises over estate planning malpractice in Florida, heading directly to court isn’t always the most strategic or effective starting point. In many cases, parties turn to mediation or arbitration. Both are forms of alternative dispute resolution (ADR) designed to bypass the traditional courtroom process and reach a quicker, potentially less contentious resolution.

Understanding Mediation

Mediation involves a neutral third party—the mediator—who facilitates a conversation between the aggrieved client and the attorney accused of malpractice. This setting encourages open dialogue and mutual agreement without requiring the mediator to issue a binding decision. Sessions are typically confidential, and either party can walk away if a resolution isn’t reached. Mediation can occur before a lawsuit is filed, or at any stage during litigation if both sides agree.

The Arbitration Option

Arbitration, by contrast, is more structured and, unlike mediation, the arbitrator’s decision can be binding. A sole arbitrator or a panel evaluates evidence, hears arguments, and issues a ruling. In Florida, arbitration can only be compelled if there’s a written agreement—commonly part of an attorney-client contract—requiring it in the event of a dispute. This route operates similarly to a private trial but often with expedited procedures and limited appeal rights.

Advantages Over Litigation

• Time Efficiency: ADR generally moves faster than the court system, which in Florida can be slow due to congested dockets.
• Cost Control: Without numerous pre-trial motions and discovery disputes, total attorney’s fees are typically lower.
• Privacy: ADR proceedings are not part of the public record, unlike a court trial that creates a permanent and searchable file.
• Preserved Relationships: Mediation, in particular, may soften antagonism by fostering collaborative problem-solving.

Disadvantages and Limitations

• No Jury: In arbitration, there’s no opportunity for jury sympathy or a broader review typical in a court trial.
• Binding Outcomes: If arbitration is binding, there’s limited scope for overturning an unfavorable decision—even if it’s legally flawed.
• Voluntary Nature of Mediation: Its non-binding format means a lawyer or client can end discussions at any time without resolving anything.

What makes more sense—mediation, arbitration, or full litigation? That depends on the unique facts of the malpractice claim, the willingness of parties to negotiate, and any pre-existing agreements that may govern dispute resolution. Reviewing the original retainer agreement can reveal whether ADR is required. Questions worth asking: Was arbitration pre-agreed? Is cooperation still possible? Has irreparable damage soured any chance of direct negotiation?

The Importance of Hiring a Qualified Legal Malpractice Attorney

Specialized Experience Translates to Stronger Representation

Legal malpractice cases—especially those rooted in estate planning—demand niche knowledge and precision. Attorneys who focus solely or primarily on malpractice litigation understand both the legal complexities of estate documents and the standards attorneys are required to meet when drafting them. This dual perspective strengthens their ability to construct a compelling argument backed by expert analysis, procedural accuracy, and admissible evidence.

Unlike general litigators, malpractice attorneys have direct experience deposing lawyers, investigating breaches of duty, and navigating the Florida Rules of Professional Conduct. Their familiarity with applicable case law and expert witness coordination increases the odds of reaching a successful outcome, whether through trial or settlement.

Choosing the Right Attorney: Criteria That Matter

Not all malpractice attorneys are created equal. Dig into these factors when evaluating potential legal counsel:

• Track Record: Seek attorneys with documented victories in legal malpractice cases, specifically within estate planning. Review verdicts, settlements, and published opinions when available.
• Focused Practice: Select a lawyer who dedicates a large portion of their caseload to professional liability. A malpractice-centric practice often means deeper insight and more tailored strategies.
• Peer Recognition: Legal community endorsements, board certifications in civil trial or professional liability law, and referrals from other attorneys indicate a lawyer’s respected position in the field.
• Client Communication: Evaluate clarity, responsiveness, and transparency during your consultation. How well does the attorney explain legal theories, risks, and timelines? Their ability to educate you reflects thorough knowledge and confidence.
• Fee Structures: Malpractice attorneys may work on contingency or offer hybrid arrangements. Understand the terms upfront. Ask how litigation expenses are handled, and what percentage is claimed upon recovery.

Have you asked how often the attorney cross-examines other lawyers or works with legal ethics experts? These questions target experience beyond paperwork—they get to the core of courtroom readiness.

Finding the right attorney requires more than a Google search. Explore local bar association referrals, look into Florida-based malpractice firms with estate planning expertise, and consult multiple candidates before making a decision. The right choice will shift the balance of power in your favor.

Can you sue an attorney for failing to fund a revocable trust?

Yes.  Florida does recognize a cause of action against an estate planning attorney for failing to fund a client’s revocable trust.

In the June 23, 2021 opinion of Ellerson v. Moriarty, the Florida Second District Court of Appeals considered whether the failure to fund a trust can be a ground for estate planning malpractice in Florida.

Funding a Revocable Trust

Estate planning clients often use revocable trusts as part of their estate plan.  In general, the revocable trust dictates the majority or the entirety of the disposition plan for the estate.  Some clients fund their revocable trusts before death with all of the their assets.  Some clients will partially fund their revocable trusts, and still others may not fund their revocable trusts at all.

So why would a client not fully fund their revocable trust before death?  Any asset that is placed in the revocable trust before death will avoid probate.  Avoiding probate can reduce the overall cost of dealing with the affairs of a deceased person.  Assets in the revocable trust will normally not appear in any document within the probate docket, so the general public will have no way to determine what assets were placed within the revocable trust.  Because the trust document will normally not be part of the probate court docket, the general public will not learn of the disposition plan for the estate.

Given these benefits, why do the vast majority of estate plans end up with revocable trusts that are partially funded or not funded at all?  Moving assets into the revocable trust can be complicated, confusing, cost some money, and take some time.  For example, the only way in which to move real estate into a revocable trust before death is with a deed.  For a brokerage account, in order to move the account into a trust, normally a new account owned by the trust must first be established, and then the assets moved from the account in the name of the client into the account owned by the trust.  So many clients will quite willingly create a revocable trust given the benefits of a trust, but then fail to actually fund the trust.  To move a checking account into a revocable trust will almost always require that a new checking account be opened, titled in the name of the trust.  The money in the existing checking account will need to be moved into the new checking account owned and titled in the name of the trust.  When clients figure out, for example, that all of their online bill payment information will have to be re-entered and re-done for a new checking account, many clients simply do not do so and leave their primary checking account in their own name.

In order to account for the fact that the majority of estate plans do not involved a fully funded revocable trust, the standard of care for an estate planning lawyer requires that the lawyer also draft what is known as a “pour over” will.  This type of will simply bequeaths all of the assets in the probate estate into the trust, for further disposition by and through the terms of the trust.

What Is The Standard Of Care For Funding a Revocable Trust?

But what is the standard of care for funding the revocable trust?  Is the estate planning lawyer obligated to fund the revocable trust?  Given that only the client has the authority to move financial accounts into the trust, an estate planning lawyer would clearly have no obligation to move financial assets into the trust.  But does the estate planning lawyer have the obligation to explain the necessity of moving those assets into the trust?  And is their an obligation to follow up with the funding process to ensure that the funding has taken place?  And how is real estate handled, given that the real estate would have to be moved through a newly drafted deed, presumably drafted by the estate planning lawyer?

Is It Estate Planning Malpractice In Florida For an Attorney Not To Make Sure the Trust Gets Funded?

The case explains some of these issues in the context of an estate planning malpractice case.  The facts as explained by the Court are simple.

Ellerson’s grandmother retained Moriarty in January 2018 to assist her with portions of her estate planning. Moriarty drafted an amendment to Ellerson’s grandmother’s trust, and in that amendment, it provided that Ellerson would take ownership of an undivided interest in real property located at 17th Street West in Palmetto, Florida (the 17th Street Property).  Ellerson’s grandmother passed away in August 2018.  However, because no deed had ever been prepared to transfer the 17th Street Property into the trust, it was an unfunded devise and, therefore, Ellerson did not receive her undivided interest in the property.

Ellerson then filed suit, alleging that she was an intended third-party beneficiary of the attorney-client relationship between Moriarty and her grandmother. She alleged that Moriarty never limited the scope of his duty to her grandmother to exclude advice or services to fund the trust and, in fact, had had conversations with Ellerson and her grandmother about drafting and recording deeds transferring the real property into the trust. Ellerson further contended that Moriarty failed to draft and record the deed transferring the 17th Street Property, failed to confirm the existence of a pour-over will drafted by other counsel and failed to draft a new pour-over will, and otherwise failed to properly ensure that the trust was funded to fully effectuate Ellerson’s grandmother’s intent as expressed in the trust amendment.

The trial court dismissed the complaint after trial, but the appellate court reversed, allowing the case to continue, based on the following analysis.

Here, Ellerson alleged that she was an intended third-party beneficiary of her grandmother’s trust and that her grandmother intended for the 17th Street Property to pass to Ellerson as set forth in the trust. Ellerson also alleged that due to Moriarty’s negligence in failing to draft and record a deed, the trust was not funded with that property and, therefore, that particular devise failed. This was sufficient to allege Ellerson’s standing.

Were we to conclude that an intended third-party beneficiary cannot state a cause of action where he or she relies on the use of extrinsic evidence to prove that the grantor’s intent as provided in the trust document was frustrated due to an attorney’s negligence, we would, in effect, be granting immunity to every attorney who agrees to but fails to fund a trust and/or trust amendment which he or she drafted. The trial court focused on the facial validity of the trust amendment, but that does not answer the question of whether Moriarty was negligent where it is alleged that he did not limit the scope of his services but instead expressly agreed to take further actions in order to effectuate Ellerson’s grandmother’s intent as expressed in the facially valid trust devise.

Ellerson alleges that due to Moriarty’s negligence, her grandmother’s expressed testamentary intent regarding the 17th Street Property was frustrated and that, as a result, Ellerson’s legacy was lost. Nothing more. Allowing the complaint to proceed does not mean that Ellerson will ultimately prevail. She still must prove that Moriarty specifically undertook the duty that forms the basis of her allegations. But her complaint should not have been dismissed based on the conclusion that it failed to state a cause of action.

The Takeaways: A Clear Engagement Agreement and a Pour Over Will

Two things stand out from this opinion.

First, it appears that the obligation of the estate planning attorney to fund the revocable trust was not clear in an engagement agreement.  If an attorney is going to fund the trust through a deed, the engagement agreement should so clearly state.  If the attorney is going to provide advice and assistance to a client in moving financial assets into a trust, the engagement agreement should so state.  Conversely, if the attorney is not going to provide assistance in fund the trust, the engagement agreement must clearly so state (and should probably so state that prominently).  The opinion seems to suggest that evidence is necessary to determine whether or not the attorney was obligated to provide these funding services.  Any lawyer who drafts an engagement agreement where the scope of the representation is not clear (requiring in-court testimony) is asking for trouble.

Second, although not clearly set forth in the opinion, and not analyzed in any measure by the appellate court, these is clearly something amiss with respect to the pour over will.  Although it is not clear as to why the plaintiff in the estate planning malpractice case was not receiving the 17th Street Property, it is likely because the pour over will did not cleanly pour over all assets from the Florida probate estate into the trust.  The will may have been a partial pour over will – giving some probate assets to named individuals, and pouring over other assets into the revocable trust.  It also appears, at least from the plaintiff’s allegations, that the lawyer did not draft a new pour over will.  Had the will been a clean pour over will, it should not have mattered whether or not the 17th Street Property was funded into the revocable trust before death.  Had the 17th Street Property ended up in the probate estate, a clean pour over will would have moved the property from the probate estate to the trust, and then to the plaintiff in the case pursuant to the terms of the new trust.  Apparently, the pre-existing will might have deeded the 17th Street Property to someone other than the plaintiff.  (The lack of clarity in the opinion also leaves open the possibility that there was not a will at all, causing the assets in the probate estate, including the 17th Street Property, to pass by intestacy.)

The plaintiff alleges that the Florida estate planning attorney committed malpractice because he did not confirm the existence of an existing pour over will and did not draft a new pour over will.  These allegations are far more damaging than issues about the scope of the representation.  That is because any lawyer drafting a new or amended revocable trust must make sure that there is a pour over will, and that the pour over will operates consistently with the revocable trust.  A properly functioning pour over will would have mooted the issues around the scope of the representation, because it would not have mattered whether the property was in the trust prior to death had the property been moved by will into the trust after death.  So perhaps the more important lesson here is the absolute necessity of any Florida estate planning lawyer to harmonize a revocable trust with the pour over will, or risk exposing himself or herself to an estate planning malpractice claim.

Can You Sue an Out of State Attorney in Florida for Estate Planning Malpractice?

Yes, so long as the attorney had some intention that the allegedly defective document or negligent activity would have a connection to Florida.

What is the Role of Privity in an Estate Planning Malpractice Case?

In Martin v. Sheehan (N.D. Fla. 2016), a federal estate planning malpractice case is dismissed because of the lack of “privity” between the plaintiff and the drafting attorney.

In this case Mr. Martin’s mother hired attorney Sheehan to draft a trust for her.  Mr. Martin was named as a beneficiary of the trust.  Subsequently, attorney Sheehan was involved in a change to the document pursuant to which a third person was named trustee of the trust.  Mr. Martin sued, claiming estate planning malpractice, under the theory that he should have been named trustee, not the third person.

Privity in Estate Planning Malpractice

In dismissing the case, the court focused on the necessity of a plaintiff and an attorney being in privity with one another.  In general, a person may not sue an attorney for estate planning malpractice, or any malpractice at all, unless that attorney represented the person.

Exception If Attorney’s Services Intended To Benefit The Person Suing

The narrow exception to the requirement of privity in estate planning malpractice is if the attorney’s services were intended to benefit that person.

As explained by the court:

Under Florida law, an attorney can be held liable for professional negligence–malpractice–to the attorney’s own client, that is, when there is privity. Further, in a “narrow exception” to the privity requirement, an attorney may, in appropriate circumstances, be held liable to a person the client specifically intended to benefit through the transaction at issue. See, e.g., Dingle v. Dellinger, 134 So. 3d 484, 487-90 (Fla. 3d DCA 2014). The most typical example of the “narrow exception” is a will or trust intended to transfer assets to a specific beneficiary. If the attorney negligently fails to have the will or declaration of trust properly witnessed or negligently omits property the settlor intended to include, the beneficiary may be able to recover against the attorney.