Maryland’s treatment of the attorney liability issue may be contrasted with certain other jurisdictions. In Simpson v. Calivas, 650 A.2d 318 (N.H. 1994), the New Hampshire Supreme Court refuted the granting of a directed verdict in favor of an attorney in a malpractice case. In Simpson, the attorney drafted a will leaving a life estate in “our homestead” to the stepmother and the remaining property, in fee, to the decedent’s son. The issue was whether “our homestead” included simply the house or the 100 acre tract of land also owned by the decedent, which included buildings used in the family business. The probate court found that the term “our homestead” was ambiguous and admitted certain extrinsic evidence in its determination. The probate court did not, however, admit notes taken by the defendant attorney during consultations, which stated that the house but not the entire 100 acres was to be subject to the life estate. The son, therefore, bought out the widow so that he could continue the family business. The son then sued the drafting attorney based on a third-party beneficiary theory. The New Hampshire Supreme Court stated that the issue whether the third-party beneficiary could bring suit was one of first impression and therefore it looked to other jurisdictions. The court found: “The overwhelming majority of courts that have considered this issue have found that the duty runs from an attorney to an intended beneficiary of the will.” The reason for this expansive view of the duty was justified by the “obvious” foreseeability of injury to the beneficiary when an attorney carelessly drafts the will. In Simpson, although the court identified a duty of decedent’s attorney to the intended beneficiary, the intention of the testator had already been decided by the probate court. Indeed, it was only after the probate court held that the language in the will expressed an intention to grant a life estate in the entire 100 acre tract that the son brought suit against the drafting attorney. The New Hampshire Supreme Court distinguished between the “construed intent” of the testator, that which was expressed in the language of the will, and the “actual intent”, that which the testator had wanted the lawyer to draft. It would seem that making this distinction would highlight the deficiency of the rules of construction used in interpreting testamentary instruments.
In Hotz v. Minyard, 403 S.E.2d 634 (S.C. 1996), the South Carolina Supreme Court looked at a situation where the attorney had a direct relationship with both the decedent and the beneficiary. In that case, the testator had executed two wills on the same day, the second one revoking the first. The first will was more favorable to the decedent’s daughter than the second will. The decedent’s daughter was also a client of the lawyer, and there is evidence that she had “a special confidence” in that lawyer. The daughter wanted to look at the will, and the testator told the lawyer to show the daughter the first will. The lawyer showed her the first will allegedly representing that it was the final will when, in fact, the lawyer knew that it had been revoked. The court held that the case should have been submitted to the jury as to whether the lawyer breached a fiduciary duty to the daughter. In this case, the court found it significant that the lawyer actively misrepresented facts to the beneficiary who was, of course, also a client of the lawyer.