BENNETT V. GENTILE

By: Emma Tedder

The Supreme Court of Maryland held the strict privity rule remains the law regarding the ability of beneficiaries to bring a claim against an attorney for malpractice. Bennett v. Gentile, 487 Md. 604, 607, 321 A.3d 34, 36 (2024). Additionally, the court ruled that a beneficiary must show the direct purpose of the estate plan was to benefit the non-client beneficiary to meet the third-party beneficiary exception to the strict privity rule. Id. at 630, 321 A.3d at 49-50.

Pauline Bennett (“Pauline”), Madelyn Bennett’s (“Madelyn”) mother, retained Attorney Thomas Gentile (“Gentile”) in 2015 to draft her estate plan. The Pauline A. Bennett Revocable Living Trust (“Trust”) was executed by Pauline on October 15, 2015 (“2015 Instrument”). Under the 2015 Instrument, Pauline was the Settlor, Trustee, and Beneficiary. Pauline’s intention under subsection 1.02 was for her to hold her two properties, Fillmore and Wissahican, as trustees. She also signed a deed transferring these properties to herself.

A subsequent subsection stated that Pauline would use the properties as Settlor until her death, except Wissahican, which would be used “solely for the benefit of her daughter Audrey Bennett-Eney” (“Audrey”). The following subsections explained how distributions would be made after Pauline’s death, and that Madelyn would serve as “Successor Trustee” after her death or disability.

In May of 2017, Pauline executed a new trust instrument with the help of Gentile. Audrey was added as Successor Trustee to serve jointly with Madelyn. In 2019, Pauline discovered that Audrey was mismanaging her finances and began to worry about having enough money to pay for her nursing facility. Pauline wanted to sell Wissichican to pay for her care and asked Gentile to amend her estate plans to return Wissichican to her and remove anything saying it goes to Audrey. Pauline signed the new trust instrument in November of 2019. On December 31, 2019, Pauline passed away, and Madelyn assumed her role as Successor Trustee. Subsequently, a dispute arose between Audrey and Madelyn about who owned Wissahican.

On April 3, 2020, Madelyn, as trustee, filed a complaint in the Circuit Court for Montgomery County alleging Wissahican belonged to her, not Audrey. The circuit court granted summary judgment in Audrey’s favor because the provisions in the 2017 Instrument governed the estate.

After losing Wissahican to Audrey, Madelyn brought claims against Gentile in the circuit court alleging negligent drafting of the estate, seeking damages as trustee and in a personal capacity. Despite Madelyn describing herself as an intended third-party beneficiary, all claims were resolved in Gentile’s favor on summary judgment due to the strict privity rule prohibiting non-client third-party beneficiaries in legal malpractice cases from pursuing claims. Madelyn appealed to the Appellate Court of Maryland, but while it was pending, she petitioned for a writ of certiorari, which the Supreme Court of Maryland granted.

The two issues the Supreme Court addressed on appeal were: (1) whether the strict privity rule should be overturned and replaced by the balancing of factors test and (2) whether the third-party beneficiary exception applied. Bennett, 487 Md. at 615, 321 A.3d at 40.

First, the court explained that privity of contract is required to allege a malpractice claim against an attorney. Bennett, 487 Md. at 616, 321 A.3d at 41. Maryland follows the strict privity rule, which does not allow non-clients injured by an attorney’s work to recover unless they show fraud or collusion. Id. Nobel v. Bruce established the strict privity rule in estate planning. Id. at 617, 321 A.3d at 42. The Noble court supported its strict privity holding through multiple public policies, including “protecting an attorney’s duty of loyalty” and “preventing conflicts of interest between attorneys and beneficiaries.” Id. at 618, 321 A.3d at 42 (citing Noble v. Bruce, 349 Md. 730, 741-42, 758, 709 A.2d 1264(1998)).

Furthermore, the court rejected the balancing of factors test used by other jurisdictions. Bennett,487 Md.at 616-17, 321 A.3d at 41. The balancing of factors test considers several factors, such as “foreseeability of harm to the beneficiary,” the intent behind the transaction, and the causal connection between the alleged negligent drafting and the beneficiary’s injury, to determine whether a non-client has recourse against an attorney who drafted the will. Id. The court here ultimately maintained the strict privity rule, rejecting the balancing of factors test because it is broad, unworkable, and likely to produce inconsistent results. Id. at 618, 321 A.3d at 42.

The court subsequently analyzed whether stare decisis protects the strict privity rule established in Noble’s estate planning context. Bennett, 487 Md. at 620-21, 321 A.3d at 44. Courts may abandon stare decisis when a significant change in the law or facts impacts the precedent or when the decision opposes established principles and is obviously erroneous. Id. at 621, 321 A.3d at 44. The court decided not to overturn Noble’s strict privity rule because there was no showing of clear error and no “significant change in the law or facts.” Id. at 622, 321 A.3d at 45.

The court then turned to the recognized exception to the strict privity rule known as the third-party beneficiary exception. Bennett, 487 Md. 624, 321 A.3d at 46. The third-party beneficiary exception requires a showing that the client’s intent and clear motive for hiring an estate planning lawyer was to benefit the non-client third party. Id. at 625, 321 A.3d at 46. The court noted that being a testamentary beneficiary under Noble does not automatically grant a person the right to bring claims against the drafting attorney as a third-party beneficiary. Id. at 626, 321 A.3d at 47. When amending the Trust in 2019, Pauline’s primary goal was to ensure she had enough money to pay for her nursing facility and to prevent Audrey from inheriting the Trust property. Id. at 631, 321 A.3d at 50. Pauline then decided Madelyn would receive anything left, which the court interpreted as merely incidental to removing Audrey as a beneficiary. Id. at 631, 321 A.3d at 50. In conclusion, there was no evidence to overcome the inference that Pauline executed her estate plan to benefit herself; therefore, the third-party beneficiary exception was not met. Id. at 628-29, 321 A.3d at 48.

The Bennett decision further established the strict privity rule in Maryland. The court clarified that they do not intend to replace the strict privity rule with the balancing of factors test. For beneficiaries, pursuing a malpractice claim against an attorney remains quite difficult. Beneficiaries may experience unjust outcomes and have no recourse against attorneys as a result. However, the rule protects attorneys from being overwhelmed with malpractice claims if there are multiple beneficiaries. The strict privity rule may incentivize testators to choose competent attorneys and review the distributions in their estate plan since beneficiaries will most likely have no recourse if the attorney commits malpractice.

Emma Tedder is a 2025 graduate from the University of Baltimore school of law and was formerly a Staff Editor for Law Forum. She received her Bachelor of Arts in Political Science and Dance from the University of Maryland, Baltimore County. Emma was a summer solicitor for Baltimore City Department of Law as well as a a law clerk for ChasenBoscolo Injury Lawyers. In law school, Emma was the Secretary of the Family Law Association and Head Representative for Themis Bar Prep. She is also a member of the Royal Graham Shannonhouse III Honors Society.