Case Summary: Scriveners Do Not Owe Fiduciary Duties to Beneficiaries of Wills They Prepare

Kianka v. Errickson, No. A-1314-21, 2022 WL 17574240 (N.J. Super. Ct. App. Div. December 12, 2022)

This unreported Appellate Division case explores whether a scrivener of a Will owes any duty to a beneficiary of that Will.  Under the circumstances of this case, the Appellate Division found there was no such duty.

Jack Kisthardt (“Decedent”) hired defendants, attorney Katharine Errickson (“Errickson”) and her firm to prepare his will.  On June 2, 2017, Decedent executed a will that named his nephew plaintiff William Kianka (“Kianka”), ) and Deborah McCarthy (“McCarthy”) as beneficiaries.  Decedent also named McCarthy as executor and William Wilton (“Wilton”) as alternate executor.

A few weeks later on June 26, 2017, Decedent executed a revised will that had the same beneficiaries but named Wilton as executor and McCarthy as alternate executor.

Decedent died on May 17, 2019.  Wilton submitted the revised will for probate.  Thereafter, litigation ensued between the executors named in the wills.  Specifically, on October 20, 2019, McCarthy filed an Order to Show Cause and Verified Complaint challenging the validity of the revised will and contending that she should be named as executor.  Wilton opposed the action, and Kianka intervened in the litigation.

A year later, the executors and Kianka settled the will dispute, and a Consent Order was entered on August 31, 2020.  Thereafter, Kianka sued Errickson and her law firm, alleging the defendants were negligent in overseeing the execution and probate of the revised will.  Kianka argued that the will dispute had diminished the estate, because the estate had incurred extra legal fees as a result of the will contest.

The trial court granted defendants’ motion to dismiss the action.  The trial court found that defendants were not Kianka’s attorney, but Decedent’s attorney, and they owed no duty to Kianka as a beneficiary of the wills.    Two months later, in June 2021, Kianka filed a new complaint under a new docket number, alleging the same facts and seeking the same damages as in the first action.  He added aclaim for breach of fiduciary duty.  Defendants moved for summary judgment, arguing that they owed no duty to Kianka and that he could not prove the defendants caused any damage arising out of the settlement of the will dispute.  The trial court granted defendants’ summary judgment motion, reasoning that even if Kianka could have established that defendants owed him a duty, Kianka had not shown any damage proximately caused by defendants.

Kianka appealed, and the Appellate Division affirmed the trial court’s ruling.  The Appellate Division found that the Kianka did not establish any special relationship with defendants, and therefore could not bring a breach of fiduciary duty claim against the lawyer who represented Decedent.

The Appellate Division stated that generally an attorney owes a duty to his or her client but attorneys may owe a duty of care to non-clients when they attorney knows or should have known that non-clients rely on the attorney’s representations and the non-clients are not too remote from the attorneys to be entitled to protection.  In general, the court opined that an attorney retained to prepare a will owes only a duty to the testator.

The material undisputed facts in this case established that the defendants owed no fiduciary duty to Kianka.  Defendants were retained by Decedent to draft his wills.  Kianka was never named as an executor.  Kianka’s position as beneficiary was never at issue in the litigation.  Consequently, Kianka cannot identify a special relationship that would allow him to bring a claim against Errickson and her law firm.

Finally, the court found that in an opposing motion for summary judgment Kianka pointed to not one material fact establishing a special relationship between defendants who prepared Decedent’s wills and Kianka who was a beneficiary under the wills.  “An allegation is not enough to defeat summary judgment; the non-moving party must produce sufficient evidence to reverse a verdict in his favor.”  Id. at *3.  Kianka did not certify that he had any direct dealings with defendants when they drafted his uncle’s wills.  He also failed to identify any facts that defendants knew or reasonably should have known that they were undertaking a duty to protect him from a dispute that might arise between the executor and the alternate executor.

In conclusion, the Appellate Division stated that there may be circumstances when an attorney who drafts a will owes a duty to a beneficiary, but this case does not present those circumstances.