Lawyer Who Drafted Contested Will Sued After Case Settles

NOVEMBER 27, 2006  VOLUME 14, NUMBER 22

Laura Carnese had suffered a stroke, and (as it turned out) had only a few weeks to live. A friend and relative by marriage, Charles Carnese, happened to be a lawyer; he arranged for a former associate, attorney Anthony J. Barker, to visit with Ms. Carnese and help her prepare a new will. The will prepared by Mr. Barker was signed just weeks before Ms. Carnese’s death in November, 1999.

Ms. Carnese’s will was admitted to probate, but her heirs challenged its validity. Their case was settled, but the estate paid them a total of about $620,000; the distributions to the beneficiaries named in her will were correspondingly reduced.

Two of those beneficiaries sued Mr. Barker, alleging that the will challenge was his fault. They argued that he had made an implied promise to Ms. Carnese to prepare a will which would be invulnerable to any legal challenge, and that they were the intended beneficiaries of that promise. Among the errors they alleged he had committed were his failure to:

  • ask Ms. Carnese why she had decided to distribute her assets as she had, so that he could testify about her wishes at any later trial.
  • tell Ms. Carnese that his relationship with her relative (and beneficiary) could result in his independence being challenged.
  • urge Ms. Carnese to seek counsel from a truly independent attorney.
  • interview his client before learning about her alleged wishes from Mr. Carnese, his colleague.
  • investigate Ms. Carnese’s physical, mental and emotional status at the time she signed the will.
  • make a video or audio recording of his interview with Ms. Carnese.

The trial judge dismissed the lawsuit after finding that Mr. Barker did not owe any duty to the devisees to make the will invulnerable to challenge. The Oregon Court of Appeals disagreed, and reinstated the case. According to the appellate court, Mr. Barker did owe the will beneficiaries a duty to follow any promise he had made for their benefit, and the preparation of estate planning documents necessarily implies a promise to “act in a professionally competent manner.”

The Oregon Supreme Court, however, disagreed with the state’s intermediate appellate court. The high court ruled that there was no evidence that Mr. Barker made specific promises to Ms. Carnese about preparation of her will. According to the Justices, the law should not impute an agreement to prepare a will that is “invulnerable to a will contest so as to achieve [Ms. Carnese’s] plan to maximize gifts to residuary beneficiaries.” The trial judge’s dismissal of the lawsuit against Mr. Barker was affirmed. Caba v. Barker, October 19, 2006.

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