Sisson v. Jankowski

Dr. Warren K. Sisson (Warren) retained attorney Shari Jankowski and her law firm (defendants) to prepare his will and plan his estate. The decedent’s brother, Thomas K. Sisson (Sisson) (plaintiff) stated that Warren had told Jankowski that he had cancer and wanted to pass his entire estate to Sisson. Warren told Jankowski that he did not want any of his estate to pass to his other, estranged brother. There was no evidence that the will was to be executed by a certain date. Jankowski prepared the documents and mailed them to Warren in mid-January 1999, but Warren did not receive them until January 22, 1999. Sisson contacted Jankowski three days later about finalizing the documents because of Warren’s rapidly deteriorating condition. Jankowski visited Warren on February 1, 1999, to witness the execution of the documents, which Warren did execute, except for his will. Jankowski and Warren discussed including a contingent-beneficiary clause so that his estate would pass to a charity in the event that Sisson predeceased him. Jankowski then left without obtaining Warren’s signature. Jankowski returned three days later to execute the will, but Warren did not do so because Jankowski did not believe he was competent at the time. Jankowski told Warren to contact her when he was ready to sign it. Jankowski never attempted to determine whether Warren had regained sufficient testamentary capacity to execute the will, and he died intestate on February 16, 1999. The estate was divided among Sisson, the estranged brother, and a deceased brother’s children. Sisson brought legal-malpractice claims against Jankowski and the law firm, alleging that they owed him a duty of care because he was the intended beneficiary of their relationship with Warren. The United States District Court for the District of New Hampshire certified a question of law to the New Hampshire Supreme Court concerning whether, under New Hampshire law, an attorney’s negligent failure to provide timely execution of a will, which resulted in the client dying intestate, created a viable common-law claim against the attorney by the prospective beneficiary.