Sisson v. Jankowski, et al.

2002 DNH 048

Opinion

Sisson v. Jankowski, et a l . CV-00-479-M 02/27/02 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Thomas K. Sisson, Plaintiff

v. Civil No. 00-479-M Opinion No. 2002 DNH 048 Shari Jankowski, Escruire, and Wiqqin & Nourie, P.A., Defendants

ORDER OF CERTIFICATION

Pursuant to Rule 34 of the Rules of the Supreme Court of New

Hampshire, the United States District Court for the District of

New Hampshire hereby certifies the following question of New

Hampshire law, which may be determinative of causes pending

before it and as to which there appears to be no controlling

precedent in the decisions of the Supreme Court:

Whether, under New Hampshire law and the facts as pled in plaintiff's verified complaint, an attorney's negligent failure to arrange for his or her client's timely execution of a will and/or an attorney's failure to provide reasonable professional advice with respect to the client's testamentary options (e.g., the ability to cure a draft will's lack of a contingent beneficiary clause by simply inserting a hand-written provision), which failure proximately caused the client to die intestate, gives rise to a viable common law claim against that attorney by an intended beneficiary of the unexecuted will. Statement of Relevant Facts

Accepting the allegations in plaintiff's verified complaint

as true, the material facts appear as follows. In December of

1998, Dr. Warren Sisson retained defendants to prepare his will

and other estate planning documents (e.g., durable power of

attorney, living will, advanced directives for health care,

etc.). According to plaintiff. Dr. Sisson informed Attorney

Jankowski that he was suffering from bladder and prostate cancer,

did not want to die intestate, and, therefore, wished to prepare

a will that would pass his entire estate to his brother, the

plaintiff. Dr. Sisson is alleged to have said that he was

particularly interested in ensuring that none of his estate pass

to his other brother, John Sisson, from whom he was estranged.

Attorney Jankowski prepared a will and other estate planning

documents in accordance with Dr. Sisson's instructions and, in

mid-January, 1999, mailed those documents to him for his review

and execution. Dr. Sisson had, however, suffered an injury in

his home in mid-January and, therefore, did not receive the

documents until January 22, 1999, when a neighbor delivered them

to him at a nursing home. Three days later, plaintiff says he

2 contacted Attorney Jankowski to tell her that Dr. Sisson wanted

to finalize his estate planning documents quickly because of his

deteriorating condition.

On February 1, 1999, Attorney Jankowski and two employees of

the defendant law firm, Wiggin & Nourie, P.A., visited Dr. Sisson

in the nursing home for the purpose of witnessing his execution

of those documents. At that time. Dr. Sisson executed all of the

estate planning documents prepared by Attorney Jankowski, except

his will. After Jankowski raised an issue regarding whether what

had been prepared as the final executable version of the will

should nevertheless include provisions for a contingent

beneficiary. Dr. Sisson expressed his desire to insert such a

clause, thereby providing that his estate would pass to a charity

in the event plaintiff predeceased him.

According to plaintiff, by the end of that February 1, 1999,

meeting. Dr. Sisson's testamentary intent was clear: the

unexecuted will accurately expressed his intent to pass his

entire estate to plaintiff, but simply omitted provision for a

contingent beneficiary. Nevertheless, rather than (a) modifying

3 the will immediately by inserting a brief, hand-written amendment

providing for a contingent beneficiary, or (b) modifying the will

at her office and returning later that day to secure Dr. Sisson's

signature under the requisite formalities, or (c) advising Dr.

Sisson to execute the will as drafted to avoid the risk of dying

intestate (a situation he plainly wished to avoid) and simply

arranging to have him subsequently execute a codicil providing

for the contingent beneficiary. Attorney Jankowski left a

"seriously ill" client without obtaining his signature to the

will. Verified Complaint, at para. 4.

Three days later, on February 4, 1999, Attorney Jankowski

returned with the revised will. It was not executed, however,

because Attorney Jankowski did not believe Dr. Sisson was then

competent to execute it. She left without securing his signature

and, according to plaintiff, told Dr. Sisson to contact her when

he was ready to sign the will.

On February 13, and again on February 15, plaintiff says he

spoke with an attorney at Defendant Wiggin & Nourie "to discuss

Attorney Jankowski's inaction regarding the will." Verified

4 Complaint, at paras. 34-35. According to plaintiff, that

attorney said he had "spoken to members of his firm about the

situation." I d ., at para. 35. Nevertheless, plaintiff says that

after February 4, 1999, Attorney Jankowski made no attempt to

determine whether Dr. Sisson had regained sufficient testamentary

capacity to execute his will.

On February 16, 1999, Dr. Sisson died intestate. As a

consequence, his $2,000,000 estate did not pass entirely to

plaintiff, as Dr. Sisson had intended. Instead, it was divided

among plaintiff. Dr. Sisson's other (estranged) brother, and the

children of a third (deceased) brother.

The facts presented in this case are somewhat unique. There

is no dispute as to the decedent's testamentary intent: he wanted

to avoid dying intestate and wished his entire estate to pass to

plaintiff. Nor is there any claim that his intent was frustrated

by defendants' having negligently prepared his will. Instead,

plaintiff asserts that if defendants had fulfilled their

professional and contractual obligations to Dr. Sisson in a

reasonable and non-negligent manner, he would not have died

5 intestate. And, says plaintiff, he should be permitted to

recover damages against defendants as an intended beneficiary of

their relationship with Dr. Sisson.

Although there is no New Hampshire decision on point,

several other jurisdictions have addressed the circumstances

under which an intended beneficiary of an unexecuted (or

technically deficient) will may (or may not) bring a viable

negligence claim against the attorneys who drafted that document.

See generally Attached Order in Sisson v. Jankowski, No. 00-479-M

(D.N.H. January 29, 2002). Whether, under New Hampshire common

law and the facts alleged in plaintiff's verified complaint, he

may assert a viable negligence claim against the drafters of the

decedent's draft will is a dispositive issue, with regard to

which the Supreme Court of New Hampshire should be accorded

deference by this Court. Accordingly, the Justices of the

Supreme Court of New Hampshire are respectfully requested to

resolve the matter according to New Hampshire law.

6 SO ORDERED.

Steven J. McAuliffe United States District Judge

February 27, 2002

cc: Ronald L. Snow, Esq. Andrew D. Dunn, Esq.

Attachment: Sisson v. Jankowski, et a l ., No. 00-479-M (D.N.H. January 29, 2002)