Estate Planning and Professional Liability

• Author: Seymour Goldberg
• Profession: Senior partner in the law firm of Goldberg & Goldberg, P.C., in Woodbury, New York
• Pages: 51-53

A case of rst impression that was decided by the Court of Appeals of New

York on June 17, 2010, involved the ability of the personal representa-

tive of an estate to maintain a legal malpractice claim against an attorney.

The court’s opinion was signicant since it held that the personal rep-

resentative of the estate had standing to sue an attorney.

Prior to the June 17, 2010, opinion in the Estate of Schneider case (2010

NY Slip Op 05281), the New York courts have held that a third party

without privity could not maintain a malpractice claim against an attorney

“absent fraud, collusion, malicious acts or other special circumstances” (see

Spivey v. Pulley, 138 AD2d 563, 564 [2d Dept 1988]). However, the Court

of Appeals in the Schneider case reversed prior case law in New York and

held in part as follows:

We now hold that privity, or a relationship sufciently approaching

privity, exists between the personal representative of an estate and

the estate planning attorney. We agree with the Texas Supreme Court

that the estate “stands in the shoes of a Decedent” and therefore “has

the capacity to maintain the malpractice claim on the estate’s behalf”

(Belt v Oppenheimer, Blend, Harrison & Tate, Inc. 192 SW3d 780

[Tex 2006]. The personal representative of an estate should not be

prevented from raising a negligent estate planning claim against the

attorney who caused harm to the estate. The attorney estate planner

surely knows that minimizing the tax burden of the estate is one of

the central tasks entrusted to the professional.

Thus, based on the Schneider case, the estate has a right to maintain an

action for a legal malpractice claim against an estate planning attorney.

51

ESTATE PLANNING AND

PROFESSIONAL LIABILITY