Please ensure Javascript is enabled for purposes of website accessibility
Tom Clancy, 1992 (AP photo)
A legal fight has pitted Alexandra Clancy against lawyers handling the $83 million estate of her late husband, best-selling author Tom Clancy. (File photo)

Clancy battle highlights oddity in Maryland law

Unable to sue lawyer for negligence, widow must try to have him removed

A lawyer “is not going to sue himself or his firm for professional negligence.” That would seem to be obvious.

But, because of Maryland estate law, the point had to be mentioned in this month’s court filing by the widow of Tom Clancy. Alexandra Llewellyn Clancy is challenging what she calls a $6 million mistake in the drafting and interpretation of Clancy’s will.

Maryland is one of six states in the country where beneficiaries cannot sue the attorney who drafted a will. Instead, that option is available only to the personal representative of the estate.

In this case, though, Clancy’s widow says the personal representative is the same person who drafted the provision she is challenging – the one she says will cost her an unintended $6 million in estate taxes.

Clancy’s will and amendments were drafted by lawyers from Miles & Stockbridge P.C. in Baltimore. His personal representative is J.W. Thompson Webb, a principal at the firm.

So, rather than suing Webb for legal malpractice, Alexandra Clancy had to file a motion in Baltimore City Orphans’ Court seeking to remove Webb as personal representative of her late husband’s estate, which is valued at $83 million.

“Mr. Webb’s actions demonstrate that he is unable to act towards the beneficiaries of the Estate with the impartiality required of a fiduciary…,” the motion states. “Mr. Webb must be removed and replaced by a successor personal representative who may investigate, evaluate and pursue a claim for professional negligence against Mr. Webb and his law firm.”

Reasons for the rule

In legal terms, the notion that beneficiaries can’t sue the person who drafted the will stems from the doctrine of strict privity. Maryland’s highest court affirmed the doctrine in 1998, noting allowing third-party challenges to wills “dramatically increase the potential for fraud and risk of misinterpreting the testator’s intent.” The court also found strict privity also ensures attorney-client privilege, allowing an attorney to continue representing his or her client’s wishes after death by not having to reveal any information in lawsuits brought beneficiaries.

Along those lines, estate lawyers not involved in the Clancy case say the state law also prevents the filing of frivolous lawsuits against an estate.

“If you allow beneficiaries to sue attorneys who draft wills, you’re going to drive up the cost of drafting a will,” said Benjamin J. Woolery of McGill & Woolery in Upper Marlboro.

Others noted that strict privity protects attorneys when there is only one law firm or lawyer in a town who handles wills, or a lawyer who only handles estate law.

“A lot of lawyers think it carved out a circle of immunity for lawyers in estate planning that lawyers in other fields don’t have,” said Cathleen C. Opel, special counsel with Saul Ewing LLP in Baltimore.

It’s not uncommon for the same lawyer or law firm to draw up the will and serve as personal representative of the estate, as happened Clancy’s case; however, several estate lawyers say it’s becoming less common, with a spouse or other family member typically named the personal representative.

“I tell my clients, I’m a better counselor than a personal representative,” said Michael W. Davis of Davis, Agnor, Rapaport & Skalny LLC in Columbia.

But Sheila K. Sachs, who represents Clancy’s first wife as well as their four grown children, said Clancy’s choice of personal representative made sense for him. Clancy’s original personal representative, the late Lowell R. Bowen, was also his longtime personal lawyer. Bowen, who died in 2011, appointed Webb as his successor.

“The decedent thought, ‘This is a person who knows my assets, knows what I want to do with them and knows of any family problems,” said Sachs, a member at Gordon Feinblatt LLC in Baltimore, who represented Wanda King in her divorce from Clancy.

Sachs said she has not had any problems with Webb’s work as personal representative.

Norman L. Smith, a lawyer for Alexandra Clancy, said the effort to remove Webb is not part of a larger battle over the estate between Tom Clancy’s adult children and his second wife.

Clancy amended his will in late July 2013, approximately two months before his death. According to court documents, the amendment was prepared by Webb.

Under the amended will, Alexandra was to be the sole beneficiary of Clancy’s personal property, receive one-third of his estate through a marital trust and be the primary beneficiary of a family trust, which also included his four grown children.

The amendment prepared by Webb, according to court documents, ensured the family trust qualified for the marital tax deduction. But Alexandra Clancy alleges Webb is preparing to pay some of the estimated $16 million owed in estate taxes from the family trust, which would subsequently reduce the family trust’s value by about $7.8 million. The widow claims the cost to her would be $6 million.

“The personal representative has misconstrued the will that he himself wrote,” said Smith, of Fisher & Winner LLP in Baltimore, who serves on The Daily Record’s independent Editorial Advisory Board. “If he didn’t misconstrue it, he wrote an amendment that didn’t accomplish its intended purpose.”

An Orphans’ Court judge, as is required by law upon the filing of a petition for removal, reclassified Webb as the estate’s special administrator. That means Webb can only collect, manage and preserve the property of the estate until there is a ruling on the petition for removal.

For example, Webb needed a judge’s permission, which was granted Sept. 17, to complete the sale of Clancy’s Canton condo, according to court records.

Webb has until early October to respond to the petition for removal.

A last resort

Estate lawyers, including those involved in the Clancy case, said removal of a personal representative is rare, only occurring in clear cases of fraud, neglect, incompetence or wrongdoing.

“It’s usually a last resort,” said Opel. “They won’t be removed unless there is a really good cause.”

Davis, who is not involved in the case, said he agreed with Alexandra Clancy’s arguments about the intent of the will and amendment after reading through both documents. But he added he was not sure if it meant Webb should be removed.

One possible outcome, Davis said, is a judge finds Webb’s interpretation of tax payments was incorrect and the administration of the estate continues as planned.

“There would be no lawsuit against Miles & Stockbridge because the original error was corrected, or can be corrected, before harm was done,” Davis said.

 

 

About Danny Jacobs

Danny Jacobs is the legal editor at The Daily Record. He previously covered trial courts at the state and local levels and served as web editor.