Claim of malfeasance/nonfeasance when inheritor is not named in the will

UPDATED: Sep 30, 2022

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Claim of malfeasance/nonfeasance when inheritor is not named in the will

My families dear friend of 40 years died. Two weeks before his sudden death, he asked my brother, an attorney, to rewrite his will. This would have included me in the will. This brother was named in the will. Witnesses will attest to the intent of my old friend to split his estate between my family 3 brothers. Can my brother be charged with malfeasance or nonfeasance since he made no effort to rewrite the will?

Asked on July 16, 2017 under Estate Planning, Washington


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 5 years ago | Contributor

This would be a very difficult case to win. It's not unusual for a will to take several weeks or months to be completed by an attorney, when there is no urgency: the lawyer of course wants to make sure he gets it right and captures what the decedent wanted, and that takes time; but also, practicing lawyers tend to have ongoing cases with immediate deadlines--those take precedent over drawing up a document that could easily not be needed for years to come. It is not at all unreasonable that a will would not be completed within 2 weeks if there was no reason to think that the decedent was going to pass away imminently. You write that your friend passed away "suddenly"--that implies there was no reason to think there was any special urgency to the request to revise his will, and so not getting it done in 2 weeks would be reasonable and common. That means you are unlikely to be able to establish the requisite negligence or actual bad intentions necessary to make out a case of attorney wrongdoing. Quite simply, the facts you describe do not suggest wrongdoing; there would have to be some evidence of wrongdoing or professional negligence, owever, to successful bring a case on this basis.

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