Right of Beneficiary of a Will to Sue Attorney Who Drafted the Will

Brian v. Wright, Franklin App. No. 06AP-962, 2007-Ohio-942. The court of appeals reviewed whether a plaintiff involved in estate planning legal malpractice case could sue the attorney despite no attorney/client relationship between the plaintiff and attorney. The plaintiff claimed that a will was drafted by an attorney for an incompetent testator. plaintiff argued his interest in the will was fixed ("vested") at the time because the incompetent testator could not change his will going forward. The court of appeals noted that the incompetent testator had lucid days and by implication could have days where he was able to change his will. The court of appeals relying on Ohio Supreme Court precedent noted that in the absence of fraud, collusion or malice, a potential beneficiary under a will cannot sue the testator's lawyer for legal malpractice in the drafting of the will unless the plaintiff has a vested interest in the will at the time of the drafting. Despite the court of appeals' criticism of the reasoning of the Ohio Supreme Court, it followed the long standing Ohio Supreme Court precedent.