This case brief covers New Hampshire recognizes drafting-attorney liability to intended will beneficiaries despite lack of privity and permits extrinsic evidence to establish the testator’s intent.
Simpson v. Calivas is a leading state supreme court decision on attorney malpractice in the estate-planning context. It rejects rigid privity as a bar to recovery and allows intended will beneficiaries to sue the drafting lawyer when negligent drafting frustrates the testator’s intent and harms the beneficiaries. By doing so, the court aligns tort and contract doctrines with the realities of testamentary planning, where the client’s primary purpose is to benefit third parties who otherwise have no remedy when negligent drafting is discovered only after the testator’s death.
The case also clarifies two recurring evidentiary and procedural problems. First, it confirms that extrinsic evidence—most notably the scrivener’s testimony and notes—may be used to determine the testator’s actual intent where a will term is ambiguous. Second, it explains why a prior probate court’s construction of the will does not collaterally estop a separate malpractice action against the scrivener: will construction and malpractice address different questions and involve different parties. For law students, Simpson crisply illustrates how courts balance policy interests—foreseeability, risk allocation, and finality of probate—against the need to vindicate testamentary intent and compensate foreseeable victims of professional negligence.
Simpson v. Calivas, 139 N.H. 1, 650 A.2d 318 (N.H. 1994)
The testator retained Attorney Calivas to draft a will reflecting his estate plan for his wife and his son (the plaintiff-beneficiary). The testator instructed the attorney that his wife should have a life estate in the family home property with the remainder ultimately passing to his son, and he discussed his farm and surrounding acreage. The will the attorney produced granted the wife a life estate in the parties’ “homestead,” with the remainder to the son, but it did not define the term “homestead” or otherwise clarify what real property interests were included. After the testator’s death, a dispute arose in probate court between the widow and the son over the scope of the “homestead.” The son argued that the term encompassed the entire farm compound and associated acreage, consistent with the testator’s expressed wishes; the widow contended that “homestead” meant only the residence and a small curtilage. The probate court construed the will to give the wife a life estate only in the residence and limited surrounding land, leaving substantial property interests to pass other than as the son claimed the testator intended. The son then brought a civil action against the drafting attorney alleging negligence and breach of contract as an intended third-party beneficiary of the attorney-client agreement. The trial court dismissed or limited the claims, relying in part on lack of privity and the probate construction. The New Hampshire Supreme Court granted review.
1) Does a lawyer who drafts a will owe a duty of reasonable care to the testator’s intended beneficiaries, notwithstanding lack of privity of contract? 2) May an intended beneficiary maintain negligence and third-party beneficiary contract claims against the drafting attorney when a probate court has already construed the will, and may extrinsic evidence—including the scrivener’s testimony and notes—be used to establish the testator’s intent in the malpractice action?
A drafting attorney owes a duty of reasonable care to the testator’s intended beneficiaries where the attorney’s negligence foreseeably harms those beneficiaries by frustrating the testator’s intent; privity of contract is not required to maintain either a negligence action or a third-party beneficiary contract claim. The intended beneficiary exception is grounded in foreseeability, the closeness of the connection between the conduct and the injury, the policy of preventing future harm, and the fact that, absent such a remedy, no one can vindicate the testator’s intent after death. A prior probate decree construing a will does not collaterally estop a subsequent malpractice action against the scrivener because the issues and parties differ; probate construction is limited to interpreting the instrument as written, whereas malpractice concerns whether the lawyer exercised due care in implementing the client’s actual objectives. Where a will term is ambiguous, extrinsic evidence, including the scrivener’s testimony and drafting notes, is admissible to ascertain the testator’s intent.
Yes. The New Hampshire Supreme Court held that a will-drafting attorney owes a duty of care to intended beneficiaries and may be liable to them in negligence and as an intended third-party beneficiary of the attorney-client contract. The court further held that the prior probate construction of the will did not bar the malpractice action and that extrinsic evidence—including the scrivener’s testimony and files—may be considered to establish the testator’s intent and the standard of care. The matter was remanded for proceedings consistent with these principles.
Duty and privity: The court rejected strict privity as a bar to suit, reasoning that the very purpose of will drafting is to benefit third parties—the intended beneficiaries—who are plainly foreseeable and uniquely vulnerable to negligent drafting because the error is only discovered posthumously, when the client can no longer correct it. Applying familiar policy factors (foreseeability of harm, certainty of injury, closeness of causal connection, moral blame and deterrence, and the availability of other remedies), the court concluded that recognizing a duty to intended beneficiaries is necessary to protect testamentary intent and to allocate the risk of professional error to the party best positioned to avoid it: the attorney. Allowing both negligence and third-party beneficiary contract claims reflects the dual nature of the attorney-client undertaking in the estate context—professional services intended to confer a benefit on identified beneficiaries. Collateral estoppel/res judicata: The attorney argued that the probate court’s earlier construction of the term “homestead” foreclosed relitigation of intent. The supreme court rejected that position because the parties and issues were not identical. In probate, the court interprets the instrument as written to determine legal rights among the estate’s claimants; it does not adjudicate whether the scrivener breached professional duties or whether the instrument failed accurately to embody the client’s actual objectives. Thus, the malpractice claim—focusing on the attorney’s conduct and whether the drafting satisfied the client’s instructions—was neither litigated nor essential to the probate judgment and could not be precluded. Extrinsic evidence and proof of intent: The court concluded that, where a term like “homestead” is ambiguous, extrinsic evidence is admissible to ascertain the testator’s intent. The scrivener’s testimony and drafting notes are particularly probative of what the testator communicated and what the attorney understood. Admitting such evidence does not contradict the parol evidence rule; rather, it serves the limited purpose of clarifying an ambiguous term and, in malpractice, establishing what the attorney was instructed to accomplish versus what the instrument actually did. Concerns about attorney-client privilege are mitigated by widely recognized exceptions in testamentary disputes and by the representative of the estate’s ability to waive the privilege to effectuate the decedent’s intent. Taken together, these principles warranted reversal and remand for trial on negligence and contract theories.
Simpson is a cornerstone case in attorney malpractice for estate planning. It firmly establishes the intended beneficiary exception to privity in will-drafting cases and is frequently cited for allowing negligence and third-party beneficiary contract claims against scriveners. It also guides litigants and courts on using extrinsic evidence—especially the drafting attorney’s testimony and file—to prove the testator’s actual objectives and the standard of care. Finally, it clarifies that a prior probate construction does not immunize the scrivener from malpractice liability, underscoring that probate interpretation and professional negligence serve different functions. For law students, Simpson links Professional Responsibility, Torts, Contracts, and Trusts & Estates, and offers a clear framework for analyzing will-drafting malpractice on exams and in practice.
No. Simpson recognizes a duty to intended beneficiaries in the specific context of will drafting (and, by implication, closely related estate-planning instruments) where the purpose of the engagement is to benefit identifiable third parties. It does not eliminate privity across the board for all legal services or for all malpractice claims.
An intended beneficiary may assert negligence (professional malpractice) based on the attorney’s breach of the duty of reasonable care and may also sue as a third-party beneficiary for breach of the attorney-client contract to draft an instrument effectuating the testator’s instructions. The two theories can be pursued in the alternative.
Under Simpson, extrinsic evidence is admissible to establish intent. This includes the scrivener’s testimony, drafting notes, correspondence, and other surrounding circumstances. The evidence is used to clarify ambiguous terms and to show what the attorney was instructed to accomplish compared to what the document actually did.
No. The probate court determines the legal effect of the instrument as written among estate claimants. A malpractice action concerns whether the attorney exercised due care in translating the client’s actual objectives into the instrument. Because the parties and issues differ, collateral estoppel typically does not apply.
The harm to intended beneficiaries is highly foreseeable, the causal connection to negligent drafting is direct, there is often no other remedy once the testator dies, and imposing liability deters substandard practice and promotes faithful implementation of testamentary intent. These factors outweigh concerns about unlimited liability because the class of intended beneficiaries is limited and identifiable.
Define key terms (e.g., what real property is included), memorialize client instructions in contemporaneous notes and correspondence, confirm the client’s objectives in writing, and consider including diagrams or legal descriptions for real property. These steps both honor the client’s intent and create a record that can resolve ambiguity and defend against malpractice claims.
Simpson v. Calivas reshaped the estate-planning malpractice landscape in New Hampshire by recognizing that will-drafting attorneys owe a duty to the very people the instrument is designed to benefit: the intended beneficiaries. The court’s approach aligns doctrinal rules with practical realities—errors in will drafting are typically discovered only after death, and absent a remedy for beneficiaries, no one can enforce the decedent’s true objectives.
By permitting negligence and third-party beneficiary contract claims, limiting the preclusive effect of probate construction, and endorsing the use of extrinsic evidence to ascertain intent, Simpson advances the twin goals of vindicating testamentary intent and ensuring professional accountability. For students and practitioners, it stands as a foundational case on attorney liability in drafting wills and a roadmap for avoiding and litigating estate-planning errors.