Wills, Trusts & Estates Prof Blog

Editor: Gerry W. Beyer
Texas Tech Univ. School of Law

Wednesday, August 24, 2016

Article on Incomplete Dispositions

Will dispositionNaomi Cahn recently published an Article entitled, Incomplete Dispositions, 73 Wash. & Lee L. Rev. Online 259 (2016). Provided below is an abstract of the Article:

In Irresolute Testators, Professor Jane Baron provocatively suggests the existence of two distinct types of testators: the rational, autonomous testator who has made deliberate choices about the contents of her will and whose errors, if any, are minor; and the more vulnerable, less resolute testator who may not have actually made the final decisions enshrined in a formal will. To illustrate how these testators appear in wills law, she analyzes how courts apply the doctrines of harmless error and mistake reformation. While the two doctrines appear to be intended to help the resolute testator, courts instead, she suggests, also apply the doctrines to help the irresolute testator. In causing us to reflect on the distinctions between dispository intent and a formal writing recognizable as a final statement, on rational and boundedly rational testators, on final and almost-final declarations, her article focuses us on the art of line-drawing in wills law. In this commentary, I explore another context that similarly raises issues about testators whose final intent is not clearly expressed: when can a disappointed beneficiary sue the drafting attorney for malpractice? The doctrine of privity confronts the spectre of the irresolute or inconclusive testator, yet courts have developed some dividing lines that differ from those they have developed surrounding harmless error. Privity seems to offer another illustration of how bright-line rules do not necessarily achieve dispository intent, although the privity rules do achieve certainty on only allowing final dispository statements (that are incomplete or show a lack of resolution) to provide a basis for a malpractice action. This commentary applauds Professor Baron’s achievement in focusing us on the limits of the wills reform doctrines and the significance of accounting for different types of testators.

August 24, 2016 in Articles, Estate Planning - Generally, Malpractice, Wills | Permalink | Comments (0)

Monday, July 18, 2016

Articles on the Wills Law Reforms Affect on Different Types of Testators

Wills lawNaomi Cahn recently published an Article entitled, Incomplete Dispositions, 73 Wash. & Lee L. Rev. Online 259 (2016), in response to an Article by Jane B. Baron, Irresolute Testators, Clear and Convincing Wills Law, 73 Wash. & Lee L. Rev. 3 (2016). Provided below is a summary of the Articles:

Jane Baron first discusses how new wills law reforms are allowing judicial correction of harmless errors in will execution, if both the error and testator’s intent are proven by clear and convincing evidence. Moreover, Baron distinguishes between two different types of testators, whom the reforms will affect, in her Article: the rational, resolute testator and the vulnerable, irresolute testator. Further, she illustrates how these types of testators fair under wills law, considering how courts apply the doctrines of harmless error and mistake reformation. Baron suggests that these doctrines help both types of testators. Additionally, Cahn in her commentary discusses the idea of a beneficiary suing the drafting attorney for malpractice. This addition to Baron’s Article focuses on the doctrine of privity and how it confronts the vulnerable testator.

July 18, 2016 in Articles, Estate Planning - Generally, Malpractice, Wills | Permalink | Comments (0)

Wednesday, July 13, 2016

Lack of Privity Dismisses Estate Planning Malpractice Suit

MalpracticeIn Martin v. Sheehan, a court dismissed an estate planning malpractice case, involving a beneficiary and an attorney. The plaintiff’s mother hired the defendant attorney to help her draft a trust. Her son was named the beneficiary of the trust, and the trust document was later changed to name a third person as trustee. The beneficiary son sued, claiming malpractice and asserting that he should have been named trustee. Upon the court’s ruling, it focused on the necessity of privity between a plaintiff and an attorney, noting that a person cannot sue an attorney unless that attorney represented the person. Additionally, there is one narrow exception to this rule, which allows a person to sue the attorney if that attorney’s services were intended to benefit them. This exception, however, did not apply in this case.

See Jeffrey Skatoff, Federal Estate Planning Malpractice Case Dismissed for Lack of Privity, Florida Probate Lawyers, July 11, 2016.

July 13, 2016 in Estate Planning - Generally, Malpractice, Trusts | Permalink | Comments (0)

Thursday, December 24, 2015

Attorneys, Accountants, And Financial Planners Face Liability Concerns About IRA Advice

Business_expenseA large number of Americans have individual retirement accounts (IRAs) that estate planners often use to help their clients manage assets. There are many estate planning attorneys, accountants, and financial planners that have to face headaches about the potential for liability over their management of a client’s IRA account. This article provides examples of hypothetical situations where different estate planning professionals encounter issues that cause them to become open to personal liability. The rules and regulations governing traditional IRAs, Roth IRAs, taxes, and all of the other issues dealing with IRAs can be very complex and very few individuals are gurus in this subject material. People that are involved in a profession dealing with IRAs or estate planning in general should use prudence and caution when making decisions.

See Seymour Goldberg, New Liability Concerns for Accountants, Financial Planners and Attorneys Regarding IRA Advice, Accounting Today, December 23, 2015.

December 24, 2015 in Elder Law, Estate Planning - Generally, Malpractice, Professional Responsibility | Permalink | Comments (0)

Friday, July 31, 2015

Probate Court Clerk Pleads Guilty To Stealing $232,000

JudgmentIn Savannah Georgia the longtime Chatham County Probate Court Chief Clerk Kim Birge has plead guilty to stealing $232,000 in a scheme. The Clerk confessed to raiding certificate of deposits belonging to other people for her own benefit. The government case alleges that the clerk used U.S. Mail and private commercial carriers as a part of the scheme. Kim Birge apologized to the clerk for her role in the scheme that involved stealing more than $750,000 in a three-year period. “I have asked God for forgiveness and I am asking this court for forgiveness as well.”

See Jan Skutch, Chief clerk pleads guilty to stealing $232,000 from Chatham County Probate Court, Savannah Morning News, July 31, 2015.

July 31, 2015 in Current Affairs, Estate Planning - Generally, Malpractice, Professional Responsibility, Wills | Permalink | Comments (0)

Thursday, July 30, 2015

Attorney Who Embezzled $115,000 Sentenced To One Day In Jail

JudgmentAn 84 year old Cleveland Attorney who pleaded guilty to stealing $115,000 from a client’s estate has been sentenced to serve one day in jail. Gerald Cooper, who practiced law for 57 years, originally could have faced a 15 to 21 month sentence. The attorney was given a lighter sentence due to his age and health problems. The article indicates that Cooper has colon cancer and is starting to experience signs of dementia. Even though he will only serve a day in jail, this conviction does represent a blemish on Cooper’s record and reputation.

See Eric Heisig, Cleveland attorney who stole $115,000 from client’s estate gets one day in jail, Cleveland, July 29, 2015.

Special thanks to Brian Cohan (Attorney at Law, Law Offices of Brian J. Cohan, P.C.) for bringing this article to my attention.

July 30, 2015 in Current Affairs, Estate Planning - Generally, Malpractice, Professional Responsibility | Permalink | Comments (0)

Thursday, July 16, 2015

Malpractice Claims Are Having A Major Impact On Law Firms

Law firmAs law firms constantly try to stay ahead of the changing legal market they can often fall victim to malpractice claims.  The frequency of claims being brought against law firms remain above pre-recession levels.  The highest numbers of claims are in the area of law dealing with trusts and estates practice.  Conflicts of interest are a leading cause of claims; as firms grow and expand and then take on lateral hires potential conflicts can arise.  Law firms should be proactive and try not to ignore or overlook these issues. 

See Ames & Gough, Law Firms Face Large Malpractice Claims as Risks Grow: Study, Insurance Journal, July 10, 2015. 

July 16, 2015 in Malpractice, Professional Responsibility | Permalink | Comments (1)

Tuesday, June 30, 2015

In Florida, A Lawyer For A Guardian Vicariously Liable To Ward

GavelKarim Saadeh was an elderly immigrant who had accumulated a sizable fortune when, in his old age, he lost control of his estate after making a series of gifts to a younger women.  The court appointed a guardian for Mr. Saadeh and the guardian in turn hired an attorney of their own who assisted in advising Mr. Saadeh to sign a trust instrument that had negative implications for the estate. As a result, the guardians attorney was sued, among others, for malpractice but the case was initially thrown out for a lack of privity between Saadeh and the attorney.

In Saadeh v. Connors, the Florida District Appeals Court held that the attorney was liable to the ward of a guardian that was a client. The duty of care owed by an attorney, in these situations, extends to a third party that was intended to benefit from any advise offered. The third party may sue for malpractice and the claim will not be barred due to a lack of privity.

See Brian Spiro, Florida Attorney for Emergency Temporary Guardian Owes Duty of Care to Temporary Ward, Clark Skatoff, June 26, 2015.

- See more at: http://www.clarkskatoff.com/news-resources/blog/florida-attorney-for-emergency-temporary-guardian-owes-duty-of-care-to-temporary-ward/#sthash.LV6NvW00.dpuf

June 30, 2015 in Guardianship, Malpractice, New Cases | Permalink | Comments (0)

Wednesday, June 17, 2015

New Hampshire Case Illustrates Importance Of Making Sure Client Is Competent

DevilAn ongoing case in New Hampshire involves a large estate, suspect will, dead testator, and beneficiary being asked many questions. At the heart of the matter is the competency to make a will, an issue that is likely to control the fate of a nearly $3 million estate. But in the quest to determine competency one thorny issue arose, the beneficiary had to shopped around to find an attorney for the testator due to the fact many lawyers would not assist due to the competency concerns.

Lawyer shopping can be a problem because not all people go about it with malicious intent; some people just want to find the right representation and are picky in choosing. Whenever faced with an apparent case of shopping, take extra care to make sure the would be client is not being abused or taken advantage of by the people around them. A little observation now can save much hassle for the innocent and stop those with devilish intent.

See Webber Case Shows Importance of Establishing Capacity, Fosters, May 15, 2015.


June 17, 2015 in Current Events, Malpractice, Wills | Permalink | Comments (0)

Tuesday, June 16, 2015

Disbarred New York Attorney Charged With Grand Larceny And Practicing Law Without A License

JusticeA New York man who was disbarred about five years ago has been charged with stealing more than $34,000 from a client couple.  The State alleges that John Giordanella misrepresented himself to the couple by making them believe that he was still a practicing attorney.  The couple, believing that he was a licensed attorney, hired Mr. Girdanella to handle estate matters and gave him six checks totaling $34,247.  If convicted, Mr. Giordanella could face up to seven years in prison. 

See Disbarred attorney charged with stealing $34,000 in funds, Queens Chronicle, April 23, 2015.

Special thanks to Brian Cohan (Attorney at Law, Law Offices of Brian J. Cohan, P.C.) for bringing this article to my attention.

June 16, 2015 in Current Affairs, Estate Planning - Generally, Malpractice, Professional Responsibility | Permalink | Comments (0)