In a September 30, 2011 unpublished opinion, our Appellate Division considered the duty owed by the scrivener of a will to third parties, and declined to extend that duty to the stepson of a decedent who had been omitted from the decedent’s will.

In Taffaro v. Connell, No. A-4928-09T2 (App. Div. Sept. 30, 2011), Dolores Taffaro, who had terminal cancer, retained James R. Connell, Esq. to prepare a will in December 2009. Although she had misgivings about including her stepson in her will, she decided to include him in the will she executed in early December. Later that month, however, she telephoned Mr. Connell, told him she had rethought her estate plan and wished to remove the stepson from her will. She executed a second will excluding the stepson in late December 2009.

Following Mrs. Taffaro’s January 2000 death, the stepson brought an action to establish a constructive trust over the estate, which litigation was settled. He then filed a legal malpractice action against attorney Connell, alleging that he had committed legal malpractice by not having the second will validly witnessed, and against a second attorney, Ronald M. Fraioli, Esq., alleging that he had committed malpractice by failing to advise the stepson that he had a viable malpractice claim against Connell.

The motion judge had granted summary judgment to the attorneys based upon estoppel, unclean hands, the statute of limitations, and failure to establish damages; the Appellate Division affirmed the summary judgment, but on different grounds.

In considering the motion, the appellate court examined the case of Petrillo v. Bachenberg, 139 N.J. 472 (1995), which had been relied upon by the stepson’s expert for the proposition that an attorney may owe a duty of care to third parties, including beneficiaries of a will that the attorney prepares. However, the Taffaro court noted that will beneficiaries were not in issue in Petrillo, and that Petrillo, unlike the instant case, involved an attorney who prepared documents knowing that third parties would rely on them. Taffaro, in contrast, “involve[d] an attorney who prepared a will that reflected the testator’s expressed intention to disinherit a potential beneficiary.” The court went on to opine that,

An attorney preparing a will owes a duty only to the testator, unless the attorney undertook a duty to the beneficiary. Also, an attorney owes no duty of care to a potential beneficiary “if a beneficiary’s interest is adversarial to the interest of the estate and contrary to the will of the testator.”

[Citations omitted].

The Taffaro court found that attorney Connell represented Mrs. Taffaro in the will drafting; his duty was to prepare a will in accordance with her wishes to exclude the stepson, and he owed no duty of care to the stepson in connection therewith. It also found that Connell owed no duty to the stepson because the stepson’s interests were adversarial to those of the estate. Because there was no duty owed to the stepson, the court concluded that the stepson could not establish a legal malpractice cause of action against Connell and, accordingly, there was no basis for a legal malpractice action against Fraioli.

A copy of the case can be found here – Taffaro v. Connell.