650 A.2d 318 (N.H. 1994)
In March 1984, Robert H. Simpson, Sr. executed a will drafted by attorney Christopher Calivas.1 The will left all real estate to his son, Robert H. Simpson, Jr., except for a life estate in "our homestead located at Piscataqua Road, Dover, New Hampshire," which was left to Robert Sr.'s second wife, Roberta C. Simpson.2
Robert Sr. died in September 1985.3 The plaintiff and his stepmother filed a joint petition in the Strafford County Probate Court seeking construction of the term "homestead."4 The probate court found the term ambiguous.5 It admitted extrinsic evidence of the testator's surrounding circumstances showing a close relationship between Robert Sr. and the stepmother.6 However, it excluded notes taken by Calivas during consultations that stated the house was to go to the wife as a life estate with remainder to the son and remaining land to the son.7 The probate court construed the will to provide the stepmother a life estate in all the real property.8
After losing the will construction action, the plaintiff negotiated with his stepmother to buy out her life estate in all the real property for $400,000.9 He then brought a malpractice action against Calivas in superior court pleading a contract count based on third-party beneficiary theory and a negligence count.10 At trial, the plaintiff presented Calivas's notes and testimony of Robert Sr.'s friends and acquaintances to show that Robert Sr. had intended the son to take the buildings used in the family business and the bulk of the land in fee simple.11
The superior court sustained objections to the plaintiff's attempts to introduce evidence on damages.12 It refused to allow testimony about the $400,000 payment.13 It excluded the plaintiff's expert on damages for improper disclosure.14 It excluded appraisal values contained in the probate inventory.15 With no evidence on damages before the jury, the trial court directed a verdict for the defendant.16 It granted summary judgment on collateral estoppel grounds based on the probate court's findings.17 It dismissed the action on the ground that an attorney who drafts a will owes no duty to intended beneficiaries.18 The plaintiff appealed to the Supreme Court of New Hampshire.19
Whether under New Hampshire law a drafting attorney owes a duty of reasonable care to an intended beneficiary of a will?20
To recover for negligence, a plaintiff must show that there exists a duty, whose breach by the defendant causes the injury for which the plaintiff seeks to recover.21 The existence of a contract between parties may constitute a relation sufficient to impose a duty to exercise reasonable care, but in general, the scope of such a duty is limited to those in privity of contract with each other.22 The privity rule is not ironclad, though, and exceptions are recognized where the risk to persons not in privity is apparent.23 An attorney who drafts a testator's will owes a duty of reasonable care to intended beneficiaries because the obvious foreseeability of injury to the beneficiary demands an exception to the privity rule.24 An identified beneficiary may enforce the terms of the contract as a third-party beneficiary where the client has identified to whom he wishes his estate to pass.25
Yes. The established facts show that Robert H. Simpson, Jr. was an intended beneficiary of the will drafted by Christopher Calivas for Robert H. Simpson, Sr. in March 1984.26 The will left all real estate to the plaintiff except for a life estate in the homestead to the stepmother.27 The defendant's notes recorded the intent that the house go to the wife as life estate and remaining land to the son.28 The attorney failed to draft the will in a way that clearly reflected this intent.29 This resulted in the probate court construing it to give the stepmother a life estate in all real property after Robert Sr. died in September 1985.30 This caused the plaintiff to buy out the life estate for $400,000 after the construction action.31 The injury to the intended beneficiary was reasonably foreseeable at the time the will was drafted because the attorney's actions affect the success of the client's testamentary scheme.32
The facts further establish that the plaintiff presented the notes and testimony of friends to show the actual intent for the son to take the family business buildings and bulk of the land in fee simple, yet the superior court dismissed on no-duty grounds.33 The superior court sustained objections to damages evidence including the $400,000 payment, the expert, and probate inventory appraisals, then directed a verdict with no damages evidence before the jury.34 The facts demonstrate that the plaintiff was identified in the will and in the defendant's notes as the remainder beneficiary, satisfying the third-party beneficiary test because the contract gave the promisor reason to know that a benefit to the third party was contemplated.35 The risk of harm from a drafting error that frustrated the expressed intent was apparent, warranting an exception to privity under New Hampshire law.36
The trial court erred in dismissing the plaintiff's writ for failure to state a claim based on lack of duty to intended beneficiaries.37
Whether findings of the probate court on testator intent collaterally estop the plaintiff from bringing a malpractice action against the drafting attorney?38
The elements of collateral estoppel are that the issue subject to estoppel must be identical in each action, the first action must have resolved the issue finally on the merits, and the party to be estopped must have appeared in the first action, or have been in privity with someone who did so.39 Further, the party to be estopped must have had a full and fair opportunity to litigate the issue, and the finding must have been essential to the first judgment.40 The principal task of the probate court is to determine the testator's intent, limited by the requirement that it determine the "intention of the testator as shown by the language of the whole will ...." Direct declarations of a testator's intent, however, are generally inadmissible in all probate proceedings.41
No. The issues before the probate and superior courts were not identical because the probate court determines the intent of the testator as expressed in the language of the will, after admitting extrinsic evidence of surrounding circumstances, but excluding the defendant's notes of direct declarations.42 The superior court malpractice action concerns whether the attorney negligently failed to effectuate the testator's intent as expressed to the attorney, which turns on evidence such as the notes that were excluded in the probate proceeding.43 Even assuming the probate court considered all available evidence, a finding of actual intent is not essential to the probate judgment, which focuses on expressed intent from the will's language.44 The facts show that the probate court construed the will to provide the stepmother a life estate in all real property after excluding the notes, but that construction does not preclude the superior court from examining whether the drafting failed to capture the intent conveyed in the consultation notes.45
The trial court erred in granting summary judgment on collateral estoppel grounds.46
Whether the trial court erred in excluding the plaintiff's proffered damages evidence consisting of the buyout payment, expert testimony, and probate inventory appraisals?47
The trial court may only direct a verdict where it determines, after considering all evidence in a light most favorable to the non-movant, that no rational juror could conclude that the non-moving party is entitled to relief.48 The probate inventory appraisals are admissible under the public records exception to the hearsay rule as factual findings resulting from an investigation made pursuant to authority granted by law.49 The appraisal values are relevant to determining the value of the fee, from which the life estate value can be calculated using published tables of which a court may take judicial notice.50
Yes. The trial court erred in excluding the appraisal values in the probate inventory because the inventory was prepared by a court-appointed real estate appraiser who personally inspected the property, used comparable sales and replacement-cost methods, and produced a thorough valuation of the house and two acres at $90,000 and the remaining disputed property at $376,080. The values were trustworthy under the circumstances of the court-appointed process and not unreliable, overcoming any presumption against probate appraisals.51 The facts establish that the plaintiff sought to introduce these values to show the fee value necessary for calculating damages from the life estate buyout, and their exclusion left no evidence of damages before the jury, leading to the directed verdict.52
Although the buyout payment two years later and the improperly disclosed expert were also excluded, the improper exclusion of the appraisals alone requires reversal of the directed verdict on damages grounds.53
The trial court erred in directing a verdict on the ground of no evidence of damages and in excluding the probate inventory appraisals.54