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Estate Planning Attorneys Beware Redux – Massachusetts

By Harry S. Margolis

I recently reported on the case of Fortier v. Sullivan which upends the longstanding doctrine that beneficiaries of estate plans have no claim against the attorney drafting the plan because they were not her clients. In that case, the court confirmed that the heir had no legal malpractice claim, but said that he may well have a claim under contract as a third-party beneficiary the agreement between the lawyer and the client to prepare the estate plan benefiting the heir.  Click here to read more about the case.

We have since become aware of the case of Masciari v. Fenichel (Sup. Ct., Middlesex, CA No. 12-02757, November 30, 2012), which permits a claim by a beneficiary who also happens to be the personal representative of the decedent’s estate.

In this case, Luigi Masciari had a 2002 will giving his one-half share in a Belmont house to his brother, Vincent Masciari, and the rest of his estate to his wife, Joan Rosemill.

In 2010 Luigi fell ill with brain cancer and for reasons that are not clear, Joan called in Attorney Abbott Fenichel to update his will.  In doing so, Fenichel prepared a new will for Luigi giving all of his estate to Rose. There is some question as to Luigi’s competency when he signed the new will.

After his death, litigation over the new will ensued and ultimately the estate paid Joan $44,000 to settle the matter. Vincent as executor under the 2002 will then sued Attorney Fenichel for legal malpractice. Fenichel moved to dismiss the claim saying he owed no duty to Vincent who was not his client.

The court, upholds the doctrine that a beneficiary may not sue the drafting attorney based on the reasoning that the attorney’s duty of care must only apply to the client and not split with a third party, including a beneficiary.  (One wonders how this comports with the Fortier holding that the third party may sue the drafting attorney under contract.)

In this case, the court finds that “Vincent, in his capacity as the estate’s administrator, is suing Attorney Fenichel for damages sustained by the estate as a result of the estate’s settlement with Joan.” Since Vincent is not suing as an injured beneficiary, Fenichel’s motion to dismiss is denied and the case may continue to trial.

While the Fortier and Masciari cases are bit inconsistent in their reasoning, they are consistent in saying that estate planning attorneys are not always immune to claim if they screw up.

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