The case of Fortier v. Sullivan upended 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 have a claim since he is a third-party beneficiary of the agreement between the client and the lawyer.
In Masciari v. Fenichel (Sup. Ct., Middlesex, MA No. 12-02757, November 30, 2012), the court permitted a claim to go forward by a beneficiary who also happened 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 upheld 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 be 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 found 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 was not suing as an injured beneficiary, Fenichel’s motion to dismiss was denied and the case was allowed continue to trial.
Though the Fortier and Masciari cases are a bit inconsistent in their reasoning, they are consistent in saying that estate planning attorneys are not always immune to claims from nonclients.