Hastings Law Journal


Much has been written on malpractice in estate planning, but little or nothing on the damages recoverable from the attorney in such cases. A possible reason is that many of the cases consider only the issues involved in whether a cause of action exists, such as privity and the statute of limitations. In addition, many of the cases are decided on motions for summary judgment, precluding any discussion of damages. Professor Begleiter's article attempts to fill that gap.

Following a brief review of the development and current status of the law of malpractice in estate planning, Professor Begleiter discusses the two measures of damages- the "lost bequest" measure and the "cost to fix" measure. On examination, these measures are really alternate expressions of the same damage remedy rather than separate measures. The bifurcation, however, appropriately allows the beneficiary, who is the injured party, to choose whether or not to remedy the attorney's error.

The "American rule," disallowing attorney fees as damages in the malpractice action, has caused some confusion. The proper rule is that attorney fees to discover the error or cure it are recoverable as damages. Several cases where this distinction is correctly applied are discussed.

The article then discusses the major problem in the area - the dismissal of the action - if damage has not yet occurred or is speculative. This is a larger problem in the estate planning area than in some other areas as the article illustrates. After discussing cases applying this rule, and recognizing that the rule wrongly rewards attorneys and penalizes injured parties, the article examines possible remedies. The remedy of postponing accrual of the statute of limitations, the major alternative to dismissal because of speculative damages, is rejected because of the delay inherent in that remedy. Following a brief discussion of damages awarded in cases similar to the speculative damage case, the article then proposes a remedy that is equitable to both the attorney and the intended beneficiaries.

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