Can disappointed prospective beneficiaries of a will sue the decedent’s trusts and estates lawyer for alleged negligence in preparation of the decedent’s will? In Phillips v. Murtha, 215 A.D.3d 408 (1^st Dep’t April 4, 2023), New York’s Appellate Division answered that question in the negative. In Phillips, the plaintiffs were cousins of the decedent and therefore potentially distibutees of the decedent’s estate, estimated at $7 million. The defendants were the lawyer and law firm who prepared the decedent’s will, which accordingly to the complaint left 98% of decedent’s estate to decedent’s caretaker. Plaintiffs alleged that the lawyer was negligent in failing to see that the caretaker was exercising undue influence over the decedent.

The trial court dismissed the complaint, and the Appellate Division affirmed, stating: “In the context of estate planning malpractice actions, strict privity applies to preclude a third party, such as beneficiaries or prospective beneficiaries like plaintiffs, from asserting a claim against an attorney for professional negligence in the planning of an estate, absent fraud, collusion, malicious acts or other special circumstances.” Noting that plaintiffs had pled their claim as one for negligence rather than legal malpractice, the court found that nonetheless “plaintiffs have not pleaded facts to show that defendant attorneys owed plaintiffs a duty of care in the drafting of their client’s will and trust agreement. The strict privity requirement here protects estate planning attorneys against uncertainty and limitless liability in their practice.” As to the exception for fraud or other special circumstances, the court held that plaintiffs had not pled any such claim with sufficient specificity, including as to fiduciary duty. “The relationship between an estate planning attorney and a prospective beneficiary under a will and/or trust does not in and of itself give rise to a fiduciary duty owed by the attorney to the prospective beneficiary.”

Phillips v. Murtha, 215 A.D.3d 408 (1^st Dep’t April 4, 2023)