In a recent decision, the U.S. District Court for the District of Massachusetts ruled a testator’s attorney can be held liable to a prospective beneficiary for fraudulent  misrepresentations. In Spinnato v. Gold- man, 2014 WL 7236343 (D. Mass. Dec. 19, 2014) (Saris, C.J.), applying Massachusetts law, the Court distinguished a fraudulent misrepresentation claim, where the  case law is unsettled, from a negligence, negligent misrepresentation, and breach of fiduciary duty  claim, where it is well-settled that a testator’s attorney cannot be held liable to prospective  beneficiaries because the testator’s attorney does not owe a duty of care to prospective  beneficiaries.

On August 29, 1995, the decedent, a Massachusetts resident, executed a last will and testament  prepared by her estate planning attorney. The will listed eight heirs, all of whom were distant  relatives and all but one of whom lived in Texas. The decedent had no regular contact with any of  these heirs during the last twenty years of her life.

The plaintiff, a New Hampshire resident, met the decedent in 1998. The two established a close  friendship which lasted until the dece- dent’s death in 2011. The decedent introduced the plaintiff  to her estate planning attorney five or six times. The estate planning attor- ney believed the  plaintiff to be the decedent’s best friend and never mentioned he thought their relationship was  improper. On one occa- sion, the estate planing attorney told the plaintiff the decedent want- ed  to give him the bulk of her assets either upon her death or through the use of joint accounts. The  estate planning attorney told the plaintiff he approved of the decedent’s plan.

In 2006, the decedent changed her estate plan to reflect her rela- tionship with the plaintiff. She  executed a codicil to her will and a durable power of attorney in favor of the plaintiff. The  estate plan- ning attorney drafted and notarized both documents. The codicil made the estate  planning attorney and the plaintiff co-executors of the decedent’s estate and made the plaintiff a  major heir of the estate. The estate planning attorney indicated to the plaintiff both documents  reflected the decedent’s true intent and never suggested that the decedent was incompetent or  subject to undue influence. In reliance on these documents and statements by the estate planning  attorney, the plaintiff and decedent transferred assets in four of the decedent’s accounts outside  of probate to the plaintiff.

On January 24, 2008, the decedent executed a second codicil to her  will  which  made  the plaintiff  the  sole  beneficiary  of  her $200,000 deposit on her assisted living facility apartment. The estate planning attorney drafted and notarized the codicil and indicated to the plaintiff there was  nothing improper about the change. At the time of the execution of the second codicil, the estate  planning attorney was aware of the decedent’s transfer of assets out of probate to the plaintiff.

The decedent died on March 26, 2011. Shortly after her death, unbeknown to the plaintiff, the  estate planning attorney contacted the decedent’s Texas heirs and alleged that plaintiff wrongfully  trans- ferred the decedent’s assets out of probate when the decedent was either incompetent or under the plaintiff’s undue influence. The estate planning attorney also placed the Texas heirs in contact with a Massachusetts attorney and  assisted them and their attorneys in preparing a lawsuit against the plaintiff. The plaintiff was  unaware of any of these communications until May, 2012, when the Texas heirs filed a lawsuit  against the plaintiff in Massachusetts Superior Court.

In that litigation, the estate planning attorney signed an affidavit supporting the Texas heirs’  claims against the plaintiff. He also testi- fied at deposition that he believed the decedent was  under the plaintiff’s undue influence from the day he met the plaintiff. His dep- osition testimony  also suggested the decedent was not competent to execute the legal documents transferring her  assets out of probate to the plaintiff. Based on the estate planning attorney’s affidavit and  deposition testimony, the plaintiff agreed to settle the lawsuit and pay a portion of the  non-probate assets to the Texas heirs.

Thereafter, the plaintiff sued the testator’s attorney for: (i) breach of fiduciary duty; (ii)  fraudulent misrepresentation; and, (iii) tortious interference with the expectancy of a gift. The  testator’s attorney moved to dismiss the suit.

Relying on the seminal case in Massachusetts, Miller v. Mooney, 431 Mass. 57 (2000), the Court held  the testator’s attorney did not owe a fiduciary duty to the plaintiff as a beneficiary because,  “[i]n preparing an estate plan and distributing property, either through a will or through inter  vivos trusts, attorneys can only have one client to whom they owe a duty of undivided loyalty.” It  is “[b]ecause of the potential for conflicting interests [that] testators’ attorneys do not owe a  duty to prospective beneficiaries when drafting a will.” In rejecting the plaintiff’s argument that  no conflict existed because both he and the decedent wanted her will effectuated, the Court  explained: “[I]t is the potential for conflict that prevents the imposition of a duty . . .. [A]n  isolated instance [of] identity of interests between [the attorney’s client and the  nonclients]  would not  support the imposition of a duty.”

The Court, however, held that in his capacity as co-executor of the decedent’s estate, the  testator’s attorney did owe the plaintiff, a bene- ficiary of the estate, a fiduciary duty, which  required the testator’s attorney to fully disclose to the plaintiff all “information which is  relevant to affairs entrusted to him and which . . . the [plaintiff] would desire to have.” The  Court found the plaintiff would have wanted to know that the co-executor of the decedent’s estate,  i.e., the testator’s attorney: (i) believed the estate planning documents making the plaintiff an  heir were invalid; (ii) told the Texas heirs he believed the decedent was under the plaintiff’s  undue influence when she transferred assets out of probate to the plaintiff; and, (iii) was  providing assistance to the Texas heirs in preparing the lawsuit against him. Accordingly, the  Court denied dismissal of the breach of fiduciary duty claim insofar as was it was asserted against  the testator’s attorney in his capacity as co-executor of the estate.

The Court also denied dismissal of the fraudulent misrepresenta- tion claim. This claim was based on the plaintiff’s detrimental reliance on the testator’s  attorney’s prior misrepresentations to him regarding the validity of: (i) the estate planning  documents which made him an heir; and, (ii) the decedent’s transfer of assets out of probate to  him. The testator’s attorney argued, under Massachusetts law, a testator’s attorney owes no duty of  care to prospective beneficiaries. Although the Court agreed that this is the rule for negligence,  negligent misrepresentation, and breach of fiduciary duty claims, it found no Massachusetts case  law indicating  a  prospective  beneficiary  cannot  prevail  on a fraudulent misrepresentation  claim against a testator’s attorney.

The Court also denied dismissal of the plaintiff’s claim for tortious interference with expectancy  of a gift, finding the allegations in the Complaint set forth a plausible claim. To set forth a  claim for tortious interference with expectancy of a gift, a plaintiff must plead the following  three elements: (i) the defendant intentionally interfered with the plaintiff’s expectancy in an  unlawful way; (ii)  the  plaintiff  has  a  legally  protected  interest;  and,  (iii)  the defendant’s interference acted continuously on the donor until the time the expectancy would have  been realized. The plaintiff’s Complaint alleged, during the decedent’s life, the testator’s attor- ney interfered with the decedent’s intent to include the plaintiff in her will by fraudulently executing changes to her estate plan that were favorable to the plaintiff  despite having concerns about the plaintiff’s undue influence over her which only surfaced after  her death. Accordingly, the Court found the Complaint set forth a plausi- ble claim for tortious  interference with expectancy of a gift.

The Spinnato decision illustrates  one of the many hazards  an attorney faces when making  statements to non-clients and, in particular, when a non-client, as alleged in this case, detrimen-  tally relies on the statements. The Spinnato decision also serves as a forewarning to estate  planning attorneys to “speak up now or forever hold your peace,” as waiting until after the  testator’s death to assert the testator was incompetent or under the undue influence of another  when the testator executed or changed an estate planning document may give rise to an actionable  claim by a beneficiary.