In a recent case, a Virginia trial court has joined other states in opening the door to lawsuits by disappointed beneficiaries who can demonstrate that the testator’s lawyer’s malpractice caused the beneficiary to receive a smaller bequest than intended by the testator.

In a January 2015 opinion in Richmond Society for the Prevention of Cruelty to Animals v. Thorsen, Case No. CL11-1864, the Circuit Court for the City of Richmond, Virginia, found in favor of plaintiff, the Richmond Society for the Prevention of Cruelty to Animals (RSPCA), and against the lawyer whose will drafting error left the RSPCA with only the testator’s tangible personal property rather than the entirety of her estate. The Virginia trial court agreed with the RSPCA that as a designated beneficiary under the will, the RSPCA was a third party beneficiary to the oral retainer agreement between the testator and her counsel, enabling the RSPC to pursue a malpractice claim against the testator’s counsel.

In RSPCA v. Thorsen, the testator, Alice Cralle Dumville of Richmond, requested that her lawyer, James Thorsen, draft a will that would leave her estate to her mother, but if her mother predeceased her, then to the RSPCA. Mr. Thorsen drafted a will, which was duly executed by Ms. Dumville. By the time of Ms. Dumville’s death in 2008, her mother was no longer alive and Mr. Thorsen, as co-executor, notified the RSPCA that under the will it was the sole beneficiary of Ms. Dumville’s estate.

Thereafter, while efforts to sell Ms. Dumville’s real estate were underway, a title insurer spotted a problem with the will and notified Mr. Thorsen that the will left the RSPCA only the testator’s tangible personal property, not her real property and intangible personal property. Surprised at this turn of events, Mr. Thorsen commenced an action in Chesterfield County Circuit Court seeking to have the will construed such that the RSPCA would be the beneficiary of the entire Dumville estate, contending that the testator intended to leave her estate to the RSPCA and that the court should ignore any scrivener’s error in the language of the will. The Chesterfield County Circuit Court found against Mr. Thorsen and held that only the tangible personal property passed to the RSPCA under the will.

Thereafter, the RSPCA brought a lawsuit against Mr. Thorsen in the Circuit Court for the City of Richmond, alleging that but for Mr. Thorsen’s malpractice in drafting the will, the RSPCA would have been entitled to the entire Dumville estate, and seeking as damages the value of the remainder of the estate. The RSPCA contended that it was an intended third party beneficiary to the oral retainer agreement between Ms. Dumville and Mr. Thorsen; and that as demonstrated by the credible witness testimony, Ms. Dumville intended the RSPCA to be the beneficiary of her entire estate in the event her mother predeceased her.In post-trial briefing, the RSPCA argued that this case differed from existing Virginia Supreme Court precedent inCopenhaver v. Rogers, 238 Va. 361 (1989), in which will beneficiaries’ malpractice claim against the testator’s counsel was dismissed, because here the testator’s primary intent was to benefit the RSPCA. The RSPCA argued in the alternative that should the court wish to depart from the standard articulated in Copenhaver, it could adopt the standard applied in other jurisdictions, in which non-clients can sue an attorney in matters involving estate planning under a negligence and third party beneficiary theory.

In his defense, Mr. Thorsen argued that under Copenhaver, a will beneficiary has no cause of action for malpractice against the testator’s lawyer because there is no privity of contract; that a contingent beneficiary, such as RSPCA was not and could not be a third party beneficiary of the retainer agreement; and that the testator’s primary intent was to avoid her estate going to her ex-husband, not to benefit the RSPCA.

Following a non-jury trial, the court held in favor of the RSPCA, adopting its proposed findings of fact and conclusions of law and awarding it monetary damages in an amount to compensate for the lost intangible and real property that it was not able to receive under the will. As the court adopted the RSPCA’s proposed conclusions of law, including its alternative argument about the abandonment of the Copenhaver standard and adoption of an expanded standard for beneficiaries to sue testator’s counsel, it is unclear whether the court followed, but distinguishedCopenhaver, or expanded it. Time will tell. The parties are headed to the Virginia Supreme Court on appeal.