Should Elizabeth Edwards’ Heirs Sue Estate Planning Attorney?

I recently blogged about Elizabeth Edwards leaving her philandering husband out of her will. Assuming that she excluded John as a trust beneficiary as well (which we truly don’t know), her attorney would have known that disinheriting John was impossible under North Carolina probate law. Should her beneficiaries sue Elizabeth’s estate planning attorney for malpractice?

Although malpractice is possible in this case, it’s unlikely. Pursuing the suit may cost more than the amount recovered, and the attorney did the best he could under the circumstances.

Further, Elizabeth, who practiced law for nearly twenty years, most likely knew about the elective share statutes anyways. Some people think that she merely meant for the will to convey a message. The will, which she signed barely a week before her death, seems to have been a last resort for the event that her breast cancer reached a terminal stage prior to the expiration of her mandatory year of separation from John. Had she lived for a few more months, she could have divorced John and eliminated the elective share issue.

The point is probably moot because John, who is worth $30 million in his own right, is unlikely to risk the stink of battling his own children for their dead mother’s money. But if Elizabeth intended for her will to send a message, “this estate plan seems to have been a success.”

Scott Martin, Should Elizabeth Edwards’ Heirs Sue for Malpractice?, The Trust Advisor Blog, Jan. 16, 2011.