Two Cases Find Attorneys Not Liable For Estate Plan Advice

NOVEMBER 10, 1997 VOLUME 5, NUMBER 19

Massachusetts resident Marion Torrey met Karen Barnard in 1980, and the two became friends. When Ms. Torrey decided in 1994 that she wanted to leave the nursing home where she resided and return home, Ms. Barnard moved in with her to help take care of her.

While Ms. Barnard acknowledged that she had agreed to provide care for Ms. Torrey, she also insisted that Ms. Torrey wanted to give her home to Ms. Barnard. Ms. Torrey had a long-time relationship with a local attorney, Linwood Erskine, with whom she discussed the possibility of transferring the home to Ms. Barnard on several occasions. In fact, the last such discussion was just three days before Ms. Torrey died, in 1995, at the age of 103.

At that last meeting, according to Ms. Barnard, Ms. Torrey actually instructed the lawyer to draw up a deed transferring the home to her. The attorney advised against such a transfer, arguing that it might jeopardize Ms. Torrey’s ability to stay at home, and might disqualify her from Medicaid assistance in the event that she had to be placed in a nursing home. Attorney Erskine went further, telling Ms. Torrey that he felt so strongly about the transfer that she would have to retain another attorney if she wanted to make the gift. Ms. Torrey took no steps to locate or retain another attorney, and died three days later. Her will left nothing to Ms. Barnard.

Ms. Barnard sued Attorney Erskine. In her complaint, she alleged that Erskine had interfered with her contractual relationship with Ms. Torrey, that he had induced Ms. Torrey to breach their agreement, and that he had maliciously interfered with her right to receive the gift of the home. She further alleged that he had intentionally misrepresented the law to Ms. Torrey in order to prevent her from completing the gift.

Mr. Erskine asked the court to dismiss Ms. Barnard’s suit. He argued that he was under no obligation to protect Ms. Barnard’s interests, since his client was Ms. Torrey, and that he had properly advised her.

The Massachusetts trial judge agreed with Mr. Erskine. In dismissing the complaint, it noted that Mr. Erskine owed no duty to Ms. Barnard, and that agreeing to the transfer might have compromised his duty to his real client, Ms. Torrey. Furthermore, the court reasoned, there was no evidence of any improper motivation on Mr. Erskine’s part. The lawsuit was dismissed. Barnard v. Erskine, Mass. Super. Ct., May 2, 1997.

In an unrelated case involving the possibility of attorney liability, a law firm was sued for preparing a will, a deed and a trust for a man the lawyers had never met. Nicholas A. Anagnostis hired the law firm of Mahoney, Hawkes & Goldings to prepare the documents for his stepfather, Berj H. Seron. Although no attorney from the firm ever met with Mr. Seron, asked him what he wished to do or evaluated his competence, the firm prepared the documents and revised them several times at the behest of Mr. Seron (who marked up the drafts and returned them but never met the lawyers).

When the documents were signed, the effect was to disinherit Mr. Seron’s daughter, granddaughter and sisters. Mr. Seron’s daughter, Marcia Seron Tetrault sued the law firm for alleged negligence in preparing the documents without ever meeting their client.

The appeals court allowed the complaint against the law firm to be dismissed, although the court took care to note that “our conclusion does not mean that we approve of the professional conduct of the lawyers in this case.” The appeals court noted that the daughter had not demonstrated that her father’s wishes were inconsistent with the estate plan finally adopted. Tetrault v. Mahoney, Hawkes & Goldings, Sup. Jud. Ct., July 16, 1997.

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