Court Sides With Alan On Novel Legal Malpractice issue
In an issue of first impression, a court has sided with Alan’s client in a case in which he represents an executor who has sued the attorney for the decedent for malpractice in his drafting of the decedent’s will.
The defendant attorney tried to dismiss the case, arguing that as a matter of law an attorney has no legal duty to the executor of his client’s estate. Earlier in the year, in an unpublished decision, the Appeals Court suggested that there might not be such a right on the part of the executor.
In this case, however, the court found that such a claim does exist. It adopted Alan’s argument that the Appeals Court case was distinguishable because much of the claim in that case appeared to be on behalf of a disgruntled heir (who also happened to be the executor), with the claim on behalf of the heir being something of an afterthought (the law is clear that disgruntled heirs have no right to sue the decedent’s attorney for malpractice).
The court also cited cases from other jurisdictions that looked favorably upon malpractice lawsuits brought by executors (or other personal representatives of an estate) against the decedent’s attorney.
The current lawsuit alleges that the decedent’s wife contacted the defendant attorney for the purpose of having the attorney prepare her husband’s will. The wife dictated all of the terms of the will and met with the attorney without the decedent being present. The first occasion on which the attorney had any contact with the decedent was when he met the decedent at his home on the day the will was signed. The decedent signed the will with his wife sitting next to him and two of the wife’s friends looking on (this was the wife’s second marriage and the decedent’s first). The will revoked a prior will in which the decedent had left to his brother his one-half interest in a multi-family home that he and his brother jointly owned and in which his brother and sister-in-law lived.