The Plaintiffs were the daughter of Doris Kilburn (Kilburn), who hired Attorney Flaig Defendant) to draft her will. Kilburn told Defendant that she wanted to leave everything to her daughters, but the will was drafted so that Kilburn’s new husband was entitled to take his statutory share.
A cause of action for intended beneficiaries under a will accrues from the testator’s date of death.
Kilburn told Defendant that she was about to remarry, and appointed her new husband as executor. Defendant did not draft the will in such a way that would prevent the husband from taking his statutory share away from the daughters.
The trial court held the Plaintiffs had no cause of action because the statute of limitations was up two years after the will was drafted.
When does the statute of limitations start to run against an intended beneficiary of a will who has a right of action against an attorney for malpractice for negligently failing to fulfill the testamentary directions of his client?
The limitations period starts from the date that the cause of action accrues: namely, the date of the testatrix’ death when the negligent failure to perfect the testamentary scheme becomes irremediable and the impact of injury occurs.
· The trial court erroneously sustained a demurrer to the Plaintiffs’ complaint on the ground that the statute of limitations barred the present action because it was not brought within two years after the Defendant drafted the will.
· The action was timely.
· The Plaintiffs were entitled to recover as intended third-party beneficiaries.
· Out of the agreement to provide legal services to Kilburn also arose a duty to act with due care as to the interests of the Plaintiffs as the intended beneficiaries.
· The Plaintiffs were injured by Defendant’s negligent drafting of the will, and their cause of action accrued from their mother’s date of death.