NOVEMBER 25, 2002 VOLUME 10, NUMBER 21
In most cases writing a will is not terribly difficult. Making sure the will is effective can sometimes be more challenging. Involving a lawyer is supposed to make the process easier and the results more effective, but it does not always work out that way.
Dr. Warren Sisson, terminally ill with cancer, wanted to make sure his entire estate went to his brother Thomas. He had another brother, but the two were estranged and Dr. Sisson did not want him to share in the estate at all.
Dr. Sisson contacted attorney Shari Jankowski, who met with him and drafted a will and powers of attorney. A month later the attorney visited Dr. Sisson in a nursing home to discuss the documents. While there they talked about what should happen to Dr. Sisson’s estate in the unlikely event that his brother Thomas should die first; based on that conversation Dr. Sisson signed all the other documents but not his will, which Ms. Jankowski took back to her office to change.
Three days later, when she returned with Dr. Sisson’s revised will, the attorney found that his condition had deteriorated and he could no longer comprehend what he was doing. She did not let him sign the will that day, and did not return to see whether his condition improved. Dr. Sisson died two weeks later without ever signing a will; his estranged brother ended up receiving half his estate.
Dr. Sisson’s brother Thomas sued Ms. Jankowski for professional negligence. He pointed out that she could have had Dr. Sisson sign the will she had brought with her and later returned with a codicil or a new will. She might also have had him make changes and initial them on the document itself, or she could have visited with him on several more occasions with the amended will to see if his condition improved enough to sign.
The whole reason Dr. Sisson contacted the attorney in the first place was to make sure that his brother Thomas received his entire estate; her failure to complete that task caused Thomas injury for which he sought damages. Ms. Jankowski, on the other hand, argued that she did not owe Thomas Sisson any duty, and that her only duty was to Dr. Sisson.
The New Hampshire Supreme Court did not condone Ms. Jankowski’s behavior. Even though she might have fallen below the standard of care for attorneys, though, she did not owe any duty to Thomas Sisson. Her sole allegiance was to the late Dr. Sisson, and Thomas’ lawsuit against her could not proceed, ruled the state’s highest court. Sisson v. Jankowski, November 15, 2002.
