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In Estate Planning Malpractice Case Plaintiff Seeks Summary Judgment – But Does Not Prevail

This opinion arises in an unusual procedural setting – plaintiff sought summary judgment on liability. Plaintiff claimed that an estate planning attorney erred in drafting a Will. The documents are quoted here:

On August 19, 2006, Elizabeth executed a revised Last Will and Testament presented to her by Defendants. (Id. at ¶¶ 14-16.) For the purposes of this motion, there are three relevant sections to the Last Will and Testament. Section One reads, in pertinent part:

I give, devise and bequeath all of my property of whatever nature, both real and personal, personal effects, household goods, automobiles, and all other items of goods and chattels to my children who survive me in equal shares of substantially equal value, per stirpes and not per capita.

(Dkt. 21-2 at 1, § 1.)

Section Two reads, in pertinent part:

I give the residue of my estate, excluding any property over which I have power of appointment, one-half to my son, MICHAEL P. MCLEOD, per stirpes and not per capita, and one-half to MICHAEL P. MCLEOD, as Trustee of the Children’s Trust.

(Dkt. 21-2 at 1, § 2.)

Section Three reads, in pertinent part:

1. Until the termination of the Children’s Trust, the Trustee shall pay to my daughter, ANNE WAHL MCLEOD, so much or all of the net income and principal from the Trust as the Trustee determines from time to time to be reasonably necessary for Anne’s health, support, and education as are deemed reasonable in the sole discretion of the Trustee, considering Anne’s other resources known to the Trustee, and shall add to principal any undistributed net income. Payments shall be made on the basis of need in the Trustee’s discretion.

2. Upon the death of Anne Wahl McLeod, the Trustee shall distribute the then principal and all accrued or undistributed net income of the Children’s Trust to MICHAEL P. MCLEOD, and the children of ANNE WAHL MCLEOD, per stirpes and not per capita.

(Dkt. 21-2 at 1-2, § 3.)

Michael McLeod sued because Sections II and III appear to be superfluous. He alleged that Section I was incorrectly drafted and that it should only have dealt with personal property, not the residue of the estate. Plaintiff had supported his claim with testimony from two estate planning lawyers. (By custom Section One of most Wills deals only with personal property).

The court denied the motion, ruling that Sections II and III were not necessarily superfluous and that there may not have been a drafting error. The court’s reasoning, provided below, seems rather far fetched and contrary to how documents are normally read.

Plaintiff argues that Defendants were negligent because they drafted the Last Will and Testament in a manner that “contains undoubtedly an internal ambiguity.” (Dkt. 21 at 4.) According to Plaintiff, Section One disposes of all of Elizabeth’s estate’s property, which leaves the discussion of the residue of the estate in Sections Two and Three meaningless. First, the Court is unsure if this constitutes an ambiguity in the Last Will and Testament as a matter of law, and Plaintiff has cited no cases in his brief that would shed light on this issue. Although Sections Two and Three might be superfluous or irrelevant, it is not particularly unclear how the estate is to be divided. If all of the property is divided according to the provisions of Section One, then there is no residue to divide pursuant to Sections Two and Three. Zero divided by anything is still zero.

Again, respectfully, the court has missed the point. There is no reason to have Section II and III if Section I deals with all property issues. Even without summary judgment, this appears to be a strong liability case. In my opinion, this is a drafting error and it is malpractice because it caused damage to the person who were to take property under Sections II and III.

Source: McLeod v. Pignatelli, Dist. Court, ND Illinois 2017 – Google Scholar