Children’s Suit Against Lawyer Over Trust Drafting Dismissed

JANUARY  15, 2001 VOLUME 8, NUMBER 29

Massachusetts resident Thomas Rogers, Sr., was a successful businessman and retired director of a local bank. When his first wife died after a forty-year marriage and four children, he met and married Thelma W. Wigglesworth. The second Mrs. Rogers was 66 and Mr. Rogers was 74 when they married in 1977, and Mrs. Rogers had three grown children of her own.

Mr. and Mrs. Rogers signed a prenuptial agreement which provided that each would maintain separate finances, and that they would acquire no interest in one another’s property. The agreement did not prevent either from leaving property to the other, though it did indicate that there was no requirement that either one should do so.

For the next thirteen years Mr. Rogers insisted to his children that he would not be leaving any significant part of his estate to his second wife, and that they would receive it upon his death. He pointed out that he and his new wife continued to maintain separate finances.

Despite both what he told his children and the terms of his prenuptial agreement, Mr. Rogers was actually making provisions for much of his property to go to his wife. In 1979, for example, he signed a new will leaving Mrs. Rogers a life estate in his home plus an annuity of $12,000 per year.

The next year Mr. Rogers made contact with Theodore C. Regnante, an attorney in Wakefield, Mass. Mr. Regnante ultimately prepared a living trust for Mr. Rogers, and also prepared an amendment to that trust four years later. Under the terms of the trust prepared by Mr. Regnante, Mr. Rogers’ estate would be divided into two separate trusts—one for the benefit of Mrs. Rogers and the other for the benefit of Mr. Rogers’ four children.

When Mr. Rogers died in 1991 the language of the trust assigned $854,000 of his $1.37 million estate to Mrs. Rogers and then, upon her death three years later, to her three children. Mr. Rogers’ children sued Mr. Regnante, accusing him of legal malpractice in failing to carry out their father’s wishes.

Mr. Regnante defended the lawsuit on two grounds. First, he argued, the children had no right to sue him because he had represented their father and not them. Even if they could maintain the action, he insisted, the ultimate estate division was consistent with Mr. Rogers’ actual wishes, and he had no duty to follow the prenuptial agreement or Mr. Rogers’ statements to his children.

The Massachusetts Appeals Court agreed with the lawyer on the second argument. Nothing in the prenuptial agreement precluded Mr. Rogers from leaving more of his estate to his wife, and he was free to do so if he wished. The lawsuit against Mr. Regnante was dismissed. Rogers v. Regnante, October 2, 2000.

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