Drafting Attorney Liability

Drafting attorneys can be held liable for negligence to intended beneficiaries of a will or trust, even if there is no direct relationship (privity) between them. Courts consider several factors, known as the Biakanja factors, to determine if the attorney's actions caused harm to the beneficiaries, especially in cases involving unexecuted or unclear documents.

An attorney drafts a will for a client but fails to include a provision that leaves a specific asset to the client's child. After the client passes away, the child discovers the omission and sues the attorney for negligence. The court finds that the attorney's failure to include the provision was a breach of duty, and the child is awarded damages.

Drafting attorneys owe a duty to intended beneficiaries, even without privity.

Exams may present scenarios where the will is ambiguous or unexecuted, leading students to overlook the heightened burden of proof required in those cases.

Questions often involve fact patterns where a beneficiary claims negligence against an attorney, requiring analysis of the Biakanja factors and the implications of ambiguity or lack of execution.