Law of Wills, 2016A

incompetent by a court without bothering to contact the man’s guardian. Kuhn did not appear to
benefit from his client’s will. Thus, his actions were probably not motivated by a desire to take
advantage of the client. However, he was sanctioned because his actions did not meet the
reasonableness threshold. Might the outcome of the case have been different if the attorney had not
known about the guardianship?
3. An attorney met with John Wilson, an 81 year old man, to discuss preparing a testamentary trust.
At the initial meeting, John gave the attorney a $1000 check for his retainer fee. When the attorney
took the check to John’s bank to cash it, the cashier told him that John did not have enough money
in his account to cover the amount of the check. The attorney’s shock showed on his face. In
response, the cashier said, “Over the last few months, Mr. Wilson has taken large amount of money
out of his account. He comes in at least twice a week to make a withdrawal. Then, he goes to the
parking lot across the street and hands the money to strangers. He hasn’t been right since he had his
stroke.” What, if anything, is the attorney ethically required to do based upon his conversation with
the cashier? If he is paid for his services, should he draft the will?
1.6 Duty to Third Parties
A will and other testamentary documents speak at death. Thus, by the time the estate
planning attorney’s error is discovered, the client who contracted to have the will prepared is dead.
This limits the pool of persons who can sue the attorney for malpractice. Future estate planning
attorneys should not take any solace from that fact. Malpractice cases against estate planning
attorneys have increased since courts have relaxed the privity requirements and permitted suits by
third parties.
1.6.1 The Personal Representative
Estate of Schneider v. Finmann, 933 N.E.2d 718 (N.Y. 2010)
JONES, J.
At issue in this appeal is whether an attorney may be held liable for damages resulting from negligent
representation in estate tax planning that causes enhanced estate tax liability. We hold that a personal
representative of an estate may maintain a legal malpractice claim for such pecuniary losses to the
estate.
The complaint alleges the following facts. Defendants represented decedent Saul Schneider from at
least April 2000 to his death in October 2006. In April 2000, decedent purchased a $1 million life
insurance policy Over several years, he transferred ownership of that property from himself to an
entity of which he was principal owner, then to another entity of which he was principal owner and
then, in 2005, back to himself. At his death in October 2006, the proceeds of the insurance policy
were included as part of his gross taxable estate. Decedent’s estate commenced this malpractice
action in 2007, alleging that defendants negligently advised decedent to transfer, or failed to advise
decedent not to transfer, the policy which resulted in an increased estate tax liability.
Supreme Court granted defendants’ motion to dismiss the complaint for failure to state a cause of
action. The Appellate Division affirmed (60 A.D.3d 892, 876 N.Y.S.2d 121 [2009]), holding that, in
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