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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Hillsborough-northern judicial district

No. 2015-0361

GREGORY RISO & a.

v.

MAUREEN C. DWYER, ESQ. & a.

Argued: January 7, 2016

Opinion Issued: March 18, 2016

Finis E. Williams, III, of Concord, by brief and orally, for the plaintiffs.

Preti Flaherty Beliveau & Pachios, PLLP, of Concord (William C. Saturley

and Gregory L. Silverman on the brief, and Mr. Saturley orally), for the 

defendants.

LYNN, J. The plaintiffs, Gregory and Sonia Riso, appeal an order of the 

Superior Court (Nicolosi, J.) granting a motion to dismiss their negligence claim 

against the defendants, Attorney Maureen C. Dwyer and Barradale, O’Connell, 

Newkirk & Dwyer, P.A., on the grounds that the defendants owed no duty of 

care to the plaintiffs to promptly execute Gregory’s mother’s will. Because we 

find this case indistinguishable from Sisson v. Jankowski, 148 N.H. 503 

(2002), we affirm.
2

Construed most favorably to the plaintiffs, the record contains the 

following facts. See England v. Brianas, 166 N.H. 369, 371 (2014).1 In 

February 2012, Gregory Riso’s mother, Beatrice Riso, hired Dwyer to redraft 

her will. Beatrice had five children: Rocco, Ronald, Carolyn, Kenneth, and 

Gregory. Her existing will granted one-third interests in her estate to Kenneth, 

Ronald, and Gregory; however, she wished to make Gregory her sole 

beneficiary. Beatrice wanted to change her will because she believed that 

Kenneth and Ronald had intended to distribute Gregory’s share of her estate to 

Carolyn and Rocco, whom she had disinherited. Beatrice suspected that 

Kenneth and Ronald had deceived her about the contents of the first will and

delayed when she asked for their assistance in revising it. Thus, she wished to 

remove Kenneth and Ronald from her will without delay. She told Dwyer that 

she wanted to execute the new will by March 2, 2012.

The plaintiffs and Beatrice met with Dwyer on February 28, and Beatrice 

provided the necessary information to draft the will. Beatrice, who was 90 

years old, also provided a letter from her physician stating that she was 

mentally competent to make decisions. March 2 passed without Beatrice 

executing her will. Soon after, Beatrice was hospitalized. Throughout this 

time, the plaintiffs and Beatrice did not contact Dwyer. Nor did Dwyer contact 

Beatrice. Beatrice died on March 10, without executing her new will.

The plaintiffs filed a negligence claim against Dwyer and her firm. They 

alleged that the defendants breached their duty of care by failing to execute 

Beatrice’s will promptly. The defendants, arguing that we rejected such a duty 

in Sisson, 148 N.H. at 509, moved to dismiss the complaint. The plaintiffs 

asserted that Sisson was distinguishable because Beatrice had committed to a 

date certain to execute her will and demonstrated that she would not change 

her mind, while the decedent in Sisson had not. See Sisson, 148 N.H. at 504.

The trial court agreed with the defendants and concluded that the analysis in 

Sisson did not rely upon the lack of a firm deadline to execute the will. It 

determined that the reasoning in Sisson instead relied upon the potential for 

conflict between the decedent and the potential beneficiary. See id. at 507-09. 

Because the trial court found that the same potential for conflict existed under 

the circumstances here, it granted the defendants’ motion to dismiss. The 

plaintiffs filed a motion to reconsider, which the trial court denied, and this 

appeal followed.

On appeal, the plaintiffs argue that we should distinguish this case from 

Sisson and hold that Dwyer owed them a duty of care because of Beatrice’s 

 

1 The defendants argue that we should consider only the facts pleaded in the plaintiffs’ complaint. 

However, the trial court treated the facts that the plaintiffs alleged in their objection to the motion 

to dismiss as properly pleaded. Additionally, the plaintiffs would have been entitled to assert 

additional facts in an amended complaint. See ERG, Inc. v. Barnes, 137 N.H. 186, 189 (1993). 

We therefore accept the additional facts the plaintiffs alleged as properly pleaded.
3

desire to have her will executed by a date certain, and because her 

determination to disinherit four of her children eliminated any potential 

conflict.2

“In reviewing the trial court’s grant of a motion to dismiss, we consider 

whether the allegations in the plaintiff’s pleadings are reasonably susceptible of 

a construction that would permit recovery.” England, 166 N.H. at 371. We 

assume the truth of the plaintiffs’ factual allegations and “construe all 

reasonable inferences in the light most favorable to” them. Id. However, we do 

not assume the truth of the statements in the complaint that are conclusions 

of law. Id. “We then engage in a threshold inquiry, testing the facts alleged in 

the pleadings against the applicable law.” Id. (quotation omitted). “[I]f the facts 

pleaded do not constitute a basis for legal relief,” we will affirm the trial court’s 

grant of the motion to dismiss. Id. (quotation omitted). “Whether a duty exists 

in a particular case is a question of law, which we review de novo.” Id.

A duty of care “arises out of a relation between the parties and the [need 

for] protection against reasonably foreseeable harm.” Simpson v. Calivas, 139 

N.H. 1, 4 (1994) (quotation omitted). A contract between parties is generally 

“sufficient to impose a duty to exercise reasonable care,” but only “to those in 

privity of contract with each other.” Id. (quotation omitted). We have 

recognized exceptions to this rule, however, when “necessary to protect against

reasonably foreseeable harm” to persons not in privity. Sisson, 148 N.H. at 

505. In order to determine whether a duty exists, “we examine the societal 

interest involved, the severity of the risk, the likelihood of occurrence, the 

relationship between the parties, and the burden upon the defendant.”

Hungerford v. Jones, 143 N.H. 208, 211 (1998). Ultimately, we weigh “the 

social importance of protecting the plaintiff’s interest” against “the importance 

of immunizing the defendant from extended liability.” Sisson, 148 N.H. at 506

(quotations omitted).

For example, we have recognized an exception to the privity rule in an 

attorney’s duty of care to an intended beneficiary of a will to draft the will nonnegligently. See Simpson, 139 N.H. at 7. However, an attorney’s duty to an 

intended beneficiary of a will is limited. In Sisson, we held that a drafting 

attorney did not owe a duty to an intended beneficiary to execute a will 

promptly. Sisson, 148 N.H. at 509. In that case, the decedent, who had 

cancer and did not want to die intestate, told his attorney that he wished to 

execute a will that would pass his entire estate to his brother. Id. at 504. The 

attorney prepared the documents, and the decedent expressed that he wished 

to finalize the documents quickly because his condition was deteriorating. Id. 

 

2 The plaintiffs’ complaint alleged that Dwyer breached her duty of care to Beatrice, and that they 

had standing as intended beneficiaries of the will. However, the trial court treated the claim as 

alleging a duty owed to the plaintiffs, not to Beatrice, and, on appeal, the plaintiffs press only the 

argument that the trial court erred in holding that the defendants owed no duty to them.
4

The attorney met with the decedent to execute his will, but at the attorney’s 

suggestion, the decedent decided to add a contingent beneficiary clause to the 

will. Id. at 504-05. When the attorney returned with the revised will three 

days later, she did not believe the decedent had testamentary capacity to 

execute the documents and left with the will unexecuted. Id. at 505. After 

leaving the decedent that day, the attorney made no further inquiries into the 

decedent’s capacity, and did not return to execute the will. Id. The decedent

died intestate. Id. The decedent’s brother filed a negligence action against the 

attorney, arguing that the attorney had a duty to promptly execute the will. Id.

In Sisson, we considered whether the importance of the plaintiff’s 

interest outweighed the importance of protecting the defendant from additional 

liability. Id. at 507-09. “After weighing the policy considerations the parties 

identif[ied], we conclude[d] that the potential for conflict between the interests 

of a prospective beneficiary and a testator militates against recognizing a duty 

of care.” Id. at 509. We noted that the decedent and his intended beneficiary 

may have had conflicting interests in the timing of the execution of the will. Id. 

Although beneficiaries may be interested in the prompt execution of the 

documents, “the testator or testatrix may be interested in having sufficient time 

to consider and understand his or her estate planning options.” Id. We 

concluded, “Creating a duty, even under the unfortunate circumstances of this 

case, could compromise the attorney’s duty of undivided loyalty to the client 

and impose an untenable burden upon the attorney-client relationship.” Id.

The plaintiffs argue that this case is distinguishable in two ways: first, in 

Sisson, the record lacked a date certain to execute the will; and second, the 

attorney in Sisson was still engaged in the drafting process with the decedent. 

These facts, they argue, demonstrated that the attorney in Sisson could not be 

sure that the decedent had settled on an estate plan, or that he would not 

change his mind. Beatrice, on the other hand, established a firm deadline for 

executing her will and had decided to disinherit four of her children after 

discovering that they had deceived her. The plaintiffs argue that these facts

indicated that she would not have changed her mind and eliminated any 

potential for conflict. Therefore, they argue, we should distinguish this case 

from Sisson.

Although we stated in Sisson that the record did not include a date 

certain for execution of the will, id. at 504, our reasoning did not rely upon that 

fact, see id. at 508-09. Instead, we balanced the competing policy each party 

asserted and resolved the question in favor of protecting an attorney’s 

undivided loyalty to her client. Id. We concluded, “It is the potential for 

conflict that is determinative, not the existence of an actual conflict.” Id. at 

509 (quotation omitted). This potential for conflict exists until the will is

executed, even if the decedent commits to a deadline, because she may still 

change her mind. We recognized this difficulty in Sisson:
5

A client who engages an attorney to prepare a will may seem set on 

a particular plan for the distribution of her estate. It is not 

uncommon, however, for a client to have a change of heart after 

reviewing a draft will . . . . Attorneys could find themselves in a 

quandary whenever the client had a change of mind, and the 

results would hasten to absurdity.

Id. at 508 (quotation and ellipses omitted).

To hold that the existence of a specific date for the execution of Beatrice’s 

will would establish a duty from Dwyer to the plaintiffs would undermine her 

duty of undivided loyalty to Beatrice. The fact that Beatrice seemed 

determined to disinherit four of her five children did not eliminate potential 

conflict. We ruled against a duty to the intended beneficiary to draft the will 

promptly to protect the decedent’s interest in “having sufficient time to 

consider and understand his or her estate planning options.” Id. at 509. This 

encompasses all the considerations a client might make, not only who the 

beneficiary might be. In Sisson, for example, the decedent changed his mind 

about including a contingent beneficiary clause in his will on the date he 

intended to execute all of his estate documents. Id. at 504-05. Thus, even if 

we were to agree with the plaintiffs that Beatrice’s “certainty” eliminated the 

potential for conflict as to who her beneficiary would be, that would not

eliminate the potential for conflict as to some other aspect of her estate plan.

Because the potential for conflict still exists on these facts, we conclude that 

the defendants did not owe a duty to the plaintiffs.

Affirmed.

HICKS and BASSETT, JJ., concurred.