Master New Hampshire recognizes that an intended beneficiary may sue a will-drafting attorney for negligence and as a third-party beneficiary, and permits extrinsic evidence of the testator’s intent in the malpractice action. with this comprehensive case brief.
Simpson v. Calivas is a leading case on attorney liability in the drafting of wills, marking a clear departure from rigid privity rules that historically insulated transactional lawyers from claims by non-clients. The New Hampshire Supreme Court recognizes that when an attorney undertakes to draft a will, the foreseeable and intended beneficiaries of that instrument are within the scope of the attorney’s duty of care. This doctrinal move aligns malpractice law with the core purpose of estate planning: effectuating the testator’s intent for the benefit of named beneficiaries.
The decision is equally important for its procedural and evidentiary guidance. It clarifies that a probate court’s construction of a will does not bar a subsequent malpractice action against the drafter and that extrinsic evidence of the testator’s intent—often reflected in the attorney’s own notes—may be used in the malpractice case to prove breach and causation. For law students, Simpson sits at the intersection of Torts, Contracts, and Trusts & Estates, and illustrates how courts fashion remedies for transactional errors that frustrate testamentary intent.
Simpson v. Calivas, 139 N.H. 1, 650 A.2d 318 (N.H. 1994) (Supreme Court of New Hampshire)
The decedent retained attorney Calivas to draft his will. The instrument included a devise of the "homestead" to the decedent’s son, Simpson, with the balance of the estate passing under other provisions, including a residuary clause that benefitted the surviving spouse. After the decedent died, a dispute arose in probate over the meaning of "homestead"—whether it referred only to the dwelling house and curtilage or to a larger tract including surrounding acreage. The probate court construed the term more narrowly than Simpson maintained the testator intended, resulting in Simpson receiving less property than he believed was meant for him and the residuary beneficiary receiving more. Simpson alleged that the attorney’s drafting was negligent because the term "homestead" was ambiguous and failed to capture the testator’s actual instructions. He further contended that the attorney’s file and notes showed the testator intended a broader devise to Simpson. Simpson sued Calivas for legal malpractice (negligence) and for breach of contract as an intended third-party beneficiary of the attorney-client agreement. The trial court ruled against Simpson on privity and preclusion grounds. Simpson appealed.
Does a will-drafting attorney owe a duty of care to intended beneficiaries that permits them to sue for negligence and as third-party beneficiaries, and may they use extrinsic evidence of the testator’s intent in the malpractice action notwithstanding the probate court’s construction of the will?
An attorney who undertakes to draft a will owes a duty to exercise reasonable care and skill not only to the testator-client but also to the will’s intended beneficiaries. Intended beneficiaries may bring claims for legal malpractice in tort and as third-party beneficiaries of the attorney-client contract. Strict privity does not bar such claims. In a subsequent malpractice action, extrinsic evidence of the testator’s intent is admissible to establish breach and causation, and the probate court’s construction of the will does not collaterally estop the malpractice claim where the attorney was not a party and the issues differ. Damages are measured by the value the beneficiary would have received had the will been drafted consistent with the testator’s actual intent.
Yes. The court recognized a duty of care running from the will-drafting attorney to intended beneficiaries and allowed both negligence and third-party beneficiary contract claims. The court further held that the malpractice action was not barred by the probate court’s construction of the will and that extrinsic evidence of the testator’s intent is admissible in the malpractice case. The judgment against the plaintiff was reversed and the case remanded.
The court rejected strict privity as out of step with the realities and goals of estate planning. Because the very purpose of drafting a will is to confer a benefit on identified beneficiaries, it is foreseeable (and intended) that negligent drafting will harm them. Recognizing a duty to intended beneficiaries appropriately allocates risk to the party best positioned to avoid it—the drafting attorney—without opening the door to boundless liability, as recovery is limited to beneficiaries the testator specifically intended to benefit. The court also endorsed a third-party beneficiary contract theory: the testator’s contract for legal services is made, at least in part, to benefit the named beneficiary, who may therefore sue upon it. Addressing preclusion and evidence, the court explained that the probate court’s construction of the will resolved a different question—what the instrument, as written, legally conveyed—not whether the attorney negligently failed to effectuate the testator’s actual intent. Because the attorney was not a party in probate and the issues were not identical, collateral estoppel did not apply. Moreover, in a malpractice case, extrinsic evidence of the testator’s intent (including the attorney’s notes and testimony) is relevant to show what the will should have said had it been drafted with reasonable care, and to establish causation and damages. The court emphasized that the plaintiff must prove the applicable standard of care (typically through expert testimony), breach, actual testamentary intent, and that the drafting error proximately caused the shortfall in the beneficiary’s inheritance. Damages are calculated by comparing the value actually received under the probated will with what would have been received if the instrument had been properly drafted to reflect the testator’s intent.
Simpson v. Calivas is a cornerstone case in legal malpractice for transactional lawyers. It makes clear that will-drafting attorneys can be liable to intended beneficiaries, not just their clients, aligning tort and contract principles with the policy of honoring testamentary intent. It also provides practical litigation guidance: probate construction does not insulate drafters from malpractice claims, and extrinsic evidence of actual intent can be used to prove breach and causation. For students, the case illustrates the erosion of strict privity, the overlap of tort and third-party beneficiary doctrines, and the evidentiary framework for proving malpractice in estate planning.
No. Simpson eliminates strict privity only in the will-drafting context for intended beneficiaries of the instrument. The duty extends to those the testator specifically intended to benefit. Other malpractice contexts may still require privity or apply different limitations depending on jurisdiction and facts.
Generally no. The duty recognized runs to intended beneficiaries—those the testator meant to benefit. A mere disappointed heir who cannot show that the testator intended a benefit for them (as evidenced by the plan, instructions, or attorney records) cannot recover. This limitation prevents open-ended liability.
Plaintiffs typically must present expert testimony to establish the standard of care and that the attorney’s drafting fell below it. They must also prove the testator’s actual intent and causation—i.e., that, but for the negligent drafting, the beneficiary would have received a larger or different devise. Extrinsic evidence, including the drafting attorney’s notes and testimony, is admissible for these purposes.
No. The probate proceeding decides what the executed will means as a matter of law. A malpractice suit addresses whether the attorney negligently failed to draft the will to reflect the testator’s actual intent. Because the attorney is typically not a party in probate and the issues differ, collateral estoppel does not apply. However, the probate decree governs the distribution of the estate; damages in malpractice are awarded against the attorney, not by revising the probate decree.
Damages are measured by the value of what the plaintiff would have received had the will been drafted with reasonable care to reflect the testator’s intent, minus what the plaintiff actually received under the probated instrument. This aligns compensation with the goal of effectuating testamentary intent.
Simpson v. Calivas reorients attorney liability in estate planning toward the core purpose of wills: carrying out the testator’s wishes for the benefit of specified beneficiaries. By recognizing duties to intended beneficiaries in both tort and contract, the court ensures that foreseeable, intended recipients of testamentary gifts have a remedy when drafting errors thwart those wishes.
Equally important, Simpson clarifies that probate construction and malpractice liability are distinct inquiries and permits the use of extrinsic evidence to establish what the testator actually intended. For practitioners, the case underscores the need for precise drafting, careful documentation of client intent, and awareness that ambiguous terms can create both probate disputes and malpractice exposure.