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


Facts: Robert Simpson, Sr. (T) executed a will drafted by Christopher Calivas (D). All real estate was left to Robert Simpson, Jr. (P), except for a life estate in "our homestead located at Piscataqua Road," which was left to P's stepmother. Upon T's death, P and his stepmother filed a petition to determine whether "homestead" referred to the house and surrounding (limited) acreage or if it referred to the house, over 100 acres, buildings, and the family business on Piscataqua Road. The court admitted extrinsic evidence showing the close relationship between T and his wife, but did not admit notes taken by D during consultation with T, which read, "House to wife as a life estate remainder to son remaining land ... to son. . . ." The court construed the will to provide the stepmother with a life estate in all of the real property. Two years later, P bought out his stepmother's life estate for $400,000. P brought this malpractice action in contract, based on a third-party beneficiary theory and negligence. The trial court directed a verdict, granted D summary judgment, and dismissed. P appeals.

Issues.
(i) Does an attorney who drafts a will owe a duty to the intended beneficiary?
(ii) Did the trial court err in ruling that the findings of the probate court on the testator's intent collaterally estopped P from bringing a malpractice action?

Holdings: (i) Yes. (ii) Yes. Judgment reversed and case remanded.

Analysis:
1.) 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. After the testator's death, the failure of his testamentary scheme works only to deprive his intended beneficiaries of the intended bequests.

2) If a testator contracts with an attorney to draft a will and has identified those to whom he wishes his estate to pass, the identified beneficiaries may enforce the contract as third-party beneficiaries.

3)Where the terms of the will are ambiguous, extrinsic evidence of the testator's intent may be admitted to probate proceedings to the extent that it does not contradict the express terms of the will. While both the probate court and the superior court are competent to consider the same evidence on the issue of T's intent, that is not dispositive of an identity of issues. The probate court's role is to determine the testator's intent expressed in the language of the will. Direct declarations of the testator's intent are generally inadmissible in probate proceedings. A finding of actual intent is not necessary (or essential) to that judgment. Even an explicit finding of actual intent by a probate court cannot be the basis of collateral estoppel. Collateral estoppel is only applicable if the finding in the first proceeding was essential to the judgment of that court.