Assume the deceased settlor of a trust had intended that his niece be included in the beneficiary class, but his estate-planning attorney had negligently made no provision for her in the governing instrument. After settlor’s death the negligence is discovered. Is there no judicial remedy available to the niece? An action at law against the scrivener by a non-client of the scrivener, in this case the niece, for the tort of negligently drafting a trust instrument may be problematic in some jurisdictions in that the niece had not been in privity of contract with the scrivener. It was the deceased settlor who had been. The trustee as well would not have been in privity of contract with the scrivener and thus also would lack standing. Moreover, the trustee would owe a fiduciary duty to the designated beneficiaries to defend their equitable property rights incident to the particular trust relationship and thus would be acting ultra vires and in breach of the duty of loyalty were the trustee to squander trust assets in the cause of a competing non-beneficiary, the trust estate presumably not being entitled to participate in any damage award extracted by the non-client from the hapless tortfeasor-scrivener. The same goes for the settlor’s probate estate. The public policy rationale for declining to expand an estate-planning attorney’s duty of care to non-clients is that the attorney would be saddled with, and distracted by, conflicting duties and thus exposed to limitless liability. We can’t forget that as an agent-fiduciary a lawyer is saddled with a duty to act solely in the interests of the client-principal. For more on the privity barrier in such situations see §8.15.61 of Loring and Rounds: A Trustee’s Handbook (2025), which section is reproduced in its entirety in the appendix below.
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