In short: Florida limits legal malpractice claims to the lawyer’s client, with a narrow exception: a beneficiary whom the testator clearly intended to benefit, as shown in the will itself, can sue the drafting lawyer for negligence that defeated that intent (Espinosa, 612 So. 2d 1378). The limitations period is 2 years from when the malpractice was or should have been discovered (§ 95.11(5)(b)).
When a will or trust fails because of a drafting mistake, the people hurt most are usually not the lawyer’s client. The client is dead. The question is whether anyone else can sue.
The General Rule: Privity
Florida’s statute of limitations for professional malpractice says the limitation "shall be limited to persons in privity with the professional" (§ 95.11(5)(b)). In general, only the client can sue the lawyer for malpractice.
The Will-Beneficiary Exception
The Florida Supreme Court recognized a narrow exception for will drafting in Espinosa v. Sparber, Shevin, Shapo, Rosen & Heilbronner, 612 So. 2d 1378 (Fla. 1993). An intended third-party beneficiary can sue when the testator’s intent to benefit them is apparent from the face of the will and the lawyer’s negligence defeated that intent. The exception is strict: it doesn’t let a disappointed relative use outside evidence to argue the testator "really" wanted something different from what the documents say.
What Drafting Errors Look Like
- A will or trust not signed with the required formalities. The parts of a revocable trust that dispose of property at death are invalid unless signed with will formalities (§ 736.0403(2)(b)).
- Assets never funded into the trust, so they pass by the will or by intestacy.
- Beneficiary designations that contradict the plan.
- Missing words or ambiguous terms that send the family to court for construction or reformation.
- A homestead devised in violation of Florida’s constitutional restrictions.
Some of these can be fixed in probate court through construction or reformation of the document, which may be cheaper and faster than a malpractice suit.
The Deadline
Two years "from the time the cause of action is discovered or should have been discovered with the exercise of due diligence" (§ 95.11(5)(b)). In estate cases, discovery often happens when the will is probated or the trust is administered, not when it was signed.
Non-Clients and Litigation Lawyers
Suing someone else’s lawyer is hard outside the drafting context. Lawyers in litigation generally owe duties to their own clients, not to the other side, and Florida’s litigation privilege can protect conduct that occurs during a judicial proceeding. Several of the arguments below explore where those lines are.
Watch: the videos behind this article
Legal Malpractice in Estate Planning | Sarabay Marine Inc. v. Robert Greene Esq. | 2D18-0687
Watch the Real Appellate Arguments
These are recordings of actual Florida appellate oral arguments about claims against lawyers, posted on the channel. An argument is not a ruling: read the written opinion before relying on any outcome.
Can a Non-Client Sue a Lawyer? Third-Party Beneficiary & Late Requests for Admission
Florida Attorney Sanctions Appeal: Farah & Farah v. Estate of McPherson | 5th DCA Case 24-2919
Go Deeper
- DIY and Online Wills and Trusts in Florida: Why So Many Fail
- Can a Will Be Reformed in Florida? § 732.615
- A Will Written in Calligraphy on Parchment Paper With a Wax Seal. It Was Worthless.
Frequently Asked Questions
Can a beneficiary sue the lawyer who drafted a will in Florida?
Only in narrow circumstances. Under Espinosa v. Sparber, 612 So. 2d 1378 (Fla. 1993), an intended beneficiary whose benefit is apparent from the face of the will can sue for negligent drafting that defeated the testator’s intent.
What is the statute of limitations for legal malpractice in Florida?
Two years from when the cause of action was discovered or should have been discovered with due diligence (§ 95.11(5)(b)).
Can a drafting error in a Florida will be fixed without suing the lawyer?
Sometimes. Probate courts can construe ambiguous documents and, under § 732.615, reform a will to correct a mistake if the testator’s intent and the mistake are proven by clear and convincing evidence.
Can you sue the other side’s lawyer in an estate case?
Usually not. Lawyers owe duties to their own clients, and Florida’s litigation privilege can protect conduct during judicial proceedings.
Talk to a Florida probate litigator
Weidner Law, P.A. handles Florida probate, trust, and will disputes from St. Petersburg. If you need a probate litigation lawyer for a failed estate plan, call (727) 954-8752 or email weidner@mattweidnerlaw.com.
Read the law yourself, free: the full Florida Probate Code and Probate Rules and the Florida Trust Code are on floridarules.net.
This article is general information about Florida law, not legal advice about your situation. Reading it, watching the videos, or contacting the firm does not create an attorney-client relationship. Every case turns on its own facts, and past results do not guarantee a similar outcome. The hiring of a lawyer is an important decision that should not be based solely upon advertisements.
