Simpson v. Calivas
650 A.2d 318 (1994)

Facts:
Robert Sr.’s will left all real estate to Robert 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.

  • Robert Jr. and Roberta sought a determination of whether the term “homestead” referred to all of Robert Sr.’s property on Piscataqua Road (including a house, over one hundred acres of land, and buildings used in the family business), or only to the house.
  • When the stepmother won, Robert Jr. bought her out and then sued Calivas failing to draft a will which incorporated the actual intent of Robert H. Simpson, Sr. to leave all his land to the plaintiff in fee simple.

History:
The probate court construed the will to provide Roberta with a life estate in all the real property.

  • The probate court found the term “homestead” ambiguous, and in order to aid construction, admitted some extrinsic evidence of the testator’s surrounding circumstances.
  • However, the court did not admit notes taken by the defendant during consultations with Robert Sr. that read: “House to wife as a life estate remainder to son, Robert H. Simpson, Jr. … Remaining land … to son Robert.”

Issues:
(1) Whether the trial court erred in ruling that under New Hampshire law a drafting attorney owes no duty to an intended beneficiary.
(2) Whether the trial court erred in ruling that the findings of the probate court on testator intent collaterally estopped the plaintiff from bringing a malpractice action.

Holding:
Yes. Case reversed and remanded.

Reasoning:
(1) Duty to Intended Beneficiaries:

  • A drafting attorney owes a duty of care to an intended beneficiary, notwithstanding lack of privity, due to the foreseeability of injury to the intended beneficiary.

(2) Collateral Estoppel:

  • Collateral estoppel is only applicable if the finding in the first proceeding was essential to the judgment of that court.
  • Court’s determination that testator’s intent as expressed in language of will was to leave second wife life estate in all of his property did not collaterally estop intended beneficiary from suing attorney who drafted will in tort and contract, on theory that testator’s actual intent was to leave second wife life estate in house only, since finding of actual intent was not necessary to probate court judgment.

Rule: A drafting attorney owes a duty of care to an intended beneficiary, notwithstanding lack of privity, due to the foreseeability of injury to the intended beneficiary.