DEMETRA DEMARIS, APPELLANT,
v.
ROBERT ASTI, INDIVIDUALLY, AND BLACKWELL, WALKER, GRAY, POWERS, FLICK AND HOEHL, A PARTNERSHIP ENGAGED IN THE PRACTICE OF LAW, APPELLEES
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An attorney's liability to a testamentary beneficiary for malpractice arises only if the beneficiary's legacy is lost or diminished due to the attorney's professional negligence, frustrating the testator's intent as expressed in the will.
[1] An attorney preparing a will owes a duty to the testator's intended beneficiaries, who may maintain a legal malpractice action against the attorney for negligence or brea…
[2] Liability to a testamentary beneficiary for an attorney's professional negligence arises only if the beneficiary's legacy is lost or diminished as a direct result of that…
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Join FLexlaw to unlock all legal intelligenceAppellant, a beneficiary, sued an attorney for legal malpractice, alleging the attorney's negligence in preparing a will frustrated her legacy. The tr…
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FERGUSON, Judge.
This appeal is taken from a final judgment of the Circuit Court, General Jurisdiction Division, which dismissed appellant’s complaint. The contentions here are that the court erred in (1) dismissing the complaint where no adequate remedy existed in probate and the complaint alleged a cause of action for legal malpractice based on negligence or breach of contract, and (2) denying plaintiff’s motion for leave to amend her complaint where additional facts could be alleged to show that she had no adequate remedy in probate.
An attorney preparing a will has a duty not only to the testator-client, but also to the testator’s intended beneficiaries, who may maintain a legal malpractice action against the attorney on theories of either tort (negligence) or contract (as third-party beneficiaries). McAbee v. Edwards, 340 So. 2d 1167 (Fla. 4th DCA 1976). However, liability to the testamentary beneficiary can arise only if, due to the attorney’s professional negligence, the testamentary intent, as expressed in the will, is frustrated, and the beneficiary’s legacy is lost or diminished as a direct result of that negligence. [e.s.] Ventura County Humane Society for the Prevention of Cruelty to Children and Animals, Inc. v. Holloway, 40 Cal.App.3d 897, 115 Cal.Rptr. 464 (1974). There is no authority — the reasons being obvious — for the proposition that a disappointed beneficiary may prove, by evidence totally extrinsic to the will, the testator’s testamentary intent was other than as expressed in his solemn and properly executed will.1
From the face of the Amended and Recast Complaint, which was dismissed, and the Proposed Second' Amended Complaint, which we have also considered, it is clear that there is a deficiency which cannot be cured by amendment. See Affordable Homes, Inc. v. Devil’s Run, Limited, 408 So. 2d 679 (Fla. 1st DCA 1982).
Affirmed.
. There is no challenge here to testamentary capacity. Further, each page of the will was signed by the testator.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (11 total)
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Angel v. Oberon Inv., N.V., 512 So. 2d 192 (Fla. 1987)…ed is where it was the apparent intent of the client to benefit a third party. The most obvious example of this is the area of will drafting. Lorraine v. Grover, Ciment, Weinstein, & Stauber, P.A., 467 So. 2d 315 (Fla. 3d DCA 1985); DeMaris v. Asti, 426 So. 2d 1153 (Fla. 3d DCA 1983); McAbee v. Edwards, 340 So. 2d 1167 (Fla. 4th DCA 1976). Florida courts have refused to expand this exception to include incidental third-party beneficiaries. For the beneficiaries’ action in negligence to fall within the exceptio…
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Olive Lorraine v. Grover, Ciment, Weinstein & Stauber, P.A., 467 So. 2d 315 (Fla. 3d DCA 1985)…. In limited circumstances, therefore, an intended beneficiary under a will may maintain a legal malpractice action against the attorney who prepared the will, if through the attorney’s negligence a devise to that beneficiary fails. DeMaris v. Asti, 426 So. 2d 1153 (Fla. 3d DCA 1983); McAbee v. Edwards, 340 So. 2d 1167 (Fla. 4th DCA 1976). Although it is generally stated that the action can be grounded in theories of either tort (negligence) or contract (third-party beneficiary), the contractual theory is “con…1 / 2
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Basso v. Lugo, 453 So. 2d 1132 (Fla. 3d DCA 1984)…PER CURIAM. Affirmed. DeMaris v. Asti, 426 So. 2d 1153 (Fla. 3d DCA 1983); Lauderdale v. P. Tavilla Company, Inc., 329 So. 2d 363 (Fla. 3d DCA 1976).…
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Affordable Homes, Inc. v. Devil's RUN, 408 So. 2d 679 (Fla. 1st DCA 1982)
- Jacquelyn Yon McABEE v. Edwards, 340 So. 2d 1167 (Fla. 4th DCA 1976)