DeMaris v. Asti

Summary

The Florida Third District Court of Appeal held that an attorney who prepares a will may owe duties to intended beneficiaries, who may bring legal malpractice claims based on negligence or contract theories. The court affirmed dismissal because the alleged professional negligence did not frustrate testamentary intent as expressed in the will, and the deficiency could not be cured by amendment.

Holdings

1. An attorney preparing a will owes a duty not only to the testator-client but also to the testator's intended beneficiaries, who may maintain a legal-malpractice action under either a negligence theory or a contract theory as third-party beneficiaries.
2. Liability to a testamentary beneficiary can arise only when the attorney's professional negligence frustrates testamentary intent as expressed in the will and directly causes the beneficiary's legacy to be lost or diminished.
3. Dismissal was proper because the deficiency in the amended complaint and proposed second amended complaint could not be cured by amendment.

Questions Presented

1. Whether an intended beneficiary may maintain a legal-malpractice action against an attorney who prepared a will on theories of negligence or breach of contract.
2. Whether liability to a testamentary beneficiary arises when the alleged negligence frustrates the testamentary intent expressed in the will and causes the beneficiary's legacy to be lost or diminished.
3. Whether the complaint was properly dismissed when the alleged testamentary intent depended on evidence totally extrinsic to the will.
4. Whether the trial court abused its discretion by denying leave to amend when the proposed amendment could not cure the pleading deficiency.

Disposition

affirmed