Florida Inheritance: If You Didn’t Inherit Under the Will, Can You Sue the Lawyer Who Wrote It? Maybe.
Posted By Larry Tolchinsky on April 8, 2014
Last month, we posted about what happens here in Florida when someone believes that they are going to inherit something, money – property – jewelry – heirlooms, and then learns that the Will states otherwise. In some situations, Florida law grants heirs or beneficiaries with the right to sue the person (or persons) that they believe illegally interfered with their expected inheritance.
Lawyers call this a case of “tortious interference with an inheritance,” “tortious interference with an expectancy,” or “tortious interference in estate planning.”
The example we gave was a daughter who sued her father’s second wife after he died for interfering with the daughter’s expected inheritance.
Most of these cases do involve family members — widow or widowers and children from a prior marriage; estranged siblings and the like. However, the Florida courts have also opened the door for another sort of defendant to be sued when there’s a inheritance issue: lawyers.
Florida Courts Allow Lawsuits against Estate Planning Lawyers
In the past, lawyers who wrote Wills and Trusts and other estate planning documents could tell unhappy heirs and beneficiaries that if they were upset, they could not sue the lawyer because of something called “privity.” Under the rule of privity, only a client (the decedent) can sue a lawyer for negligence or malpractice, not heirs and beneficiaries because they were not considered a client. Thus, a privity defense was a strong ally to a Will drafting lawyer.
However, over time, Florida courts have created a loophole to the privity defense where Will drafting errors can now be claimed by a third party who was the intended beneficiary of the client/decedent. In these cases, the focus is on the Will itself. See, Hodge v. Cichon, 78 So. 3d 719, 722 (Fla. 5th DCA), review denied, 99 So. 3d 942 (Fla. 2012).
Then, in 2013, a Florida appellate court changed things even more. In the case of Dingle v. Dellinger, the rule of privity was given some grander exceptions to include other documents and other aspects of estate planning.
In the Dingle case, a lawyer was sued because the plaintiffs claimed the lawyer (and the lawyer’s law firm) made a professional error (or “legal malpractice”) when she drafted documents that gifted land to them.
It seems that a man named John Kyreakakis had hired the defendants to draft a quitclaim deed to gift the property to the plaintiffs, even though another lawsuit resulted in a determination that Mr. Kyreakakis didn’t have the legal right to make the gift. You can’t give what you don’t have, so the plaintiffs’ deed wasn’t worth the paper it was written on.
So, they sued the lawyer (and her law firm) who drafted the quitclaim deed for malpractice and they won.
The court decided that if the plaintiffs could show that the defendants owed any sort of legal duty to them, then they would have a valid legal malpractice claim (the privity rule wouldn’t hold to block them just because they weren’t clients of the lawyer). Why? One of the reasons that an estate planning client hires a lawyer is for the goal of benefiting his or her heirs or beneficiaries. So, when the client’s intent is thwarted by an error made by a lawyer — like a will or a trust, or here, where Kyreakakis had a deed drafted that was not legally valid — it harms the intended beneficiary.
Florida Heirs and Beneficiaries May Have a Lawsuit against The Decedent’s Lawyer
Bottom line, if you are expecting to inherit something in Florida and are shocked to learn that the Last Will and Testament of your loved one does not provide for it, or that other documents have failed you in your expected inheritance, then you may have a legal claim against the person who may have interfered with your expected inheritance — or against the lawyer or law firm that was responsible for the creation of that Will or other corresponding estate planning document(s). It all depends on the facts.