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South Carolina Expands Malpractice Claims Against Estate Planners

January 14, 2015

Authors

Luke Lantta

South Carolina Expands Malpractice Claims Against Estate Planners

January 14, 2015

by: Luke Lantta

Add South Carolina to the growing list of states that have expanded the ability of third parties to sue estate planners for legal malpractice.  The South Carolina Supreme Court described its opinion in Fabian v. Lindsay as follows: “Today we recognize a cause of action, in both tort and contract, by a third-party beneficiary of an existing will or estate planning document against a lawyer whose drafting error defeats or diminishes the client’s intent.”

The plaintiff in this case was the niece of the grantor.  The plaintiff claimed that, due to a drafting error on the part of the grantor’s lawyers, she was inadvertently disinherited.  The trial court dismissed the case on the grounds that South Carolina law does not recognize a claim for legal malpractice in the

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Successor Personal Representative Had Duty To Pursue Legal Malpractice Claims

June 5, 2014

Authors

Luke Lantta

Successor Personal Representative Had Duty To Pursue Legal Malpractice Claims

June 5, 2014

by: Luke Lantta

Depending on the circumstances in which they arrive in the position, a successor personal representative can have a lot of cleaning up to do.  Just how much looking back on the acts of her predecessor a successor fiduciary can – or must – do has been the subject of much debate.  Now, in Bookman v. Davidson, a Florida appellate court has, in a case of first impression, determined that a successor personal representative not only can pursue legal malpractice claims against an attorney retained by the original personal representative, a successor personal representative may have a duty to pursue such claims.

Under Florida law, the powers granted to the original personal representative flow to the successor personal representative.  The Florida Probate Code grants a personal representative the power to engage a lawyer to represent the personal representative and

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Florida Appellate Court Expands Third Party Suits Against Lawyers

March 4, 2014

Authors

Luke Lantta

Florida Appellate Court Expands Third Party Suits Against Lawyers

March 4, 2014

by: Luke Lantta

Jurisdictions have been slowly chipping away at the privity requirement when it comes to legal malpractice claims against estate planning attorneys.  Generally, only the client can raise a claim of professional negligence or malpractice against an attorney.  In more recent years, however, some jurisdictions have become more comfortable with the idea of “the third party intended beneficiary exception to the rule of privity.”  Of course, this exception to the rule frequently comes up in will drafting cases, but not exclusively.  Now, in Dingle v. Dellinger, a Florida appellate court has expanded this exception.

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Estate Planning Lawyer Liability To Beneficiaries

September 3, 2013

Authors

Luke Lantta

Estate Planning Lawyer Liability To Beneficiaries

September 3, 2013

by: Luke Lantta

Over the last decade or so, courts have relaxed the strict privity requirements for legal malpractice claims in the estate planning arena.  In many states, estate and trust beneficiaries now have standing to sue the lawyers who helped create the estate plan or trust.  It is now common to see not only the fiduciary sued by a disgruntled beneficiary, but the lawyer and law firm that provided the legal representation to the grantor or testator being sued, too.  Just how far these malpractice claims extend is a matter of much current fiduciary litigation.  A ‘hot topic’ for litigation in this area is the duty to disclose information that affects a beneficiary.

In Scott v. Chuhak & Tecson, P.C., the United States Court of Appeals for the Seventh Circuit explored the extent of a grantor’s lawyer’s duty to disclose pertinent information about a trust to

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Is A Trustee’s Lawyer Required To Advise His Client Not To Breach Fiduciary Duties?

October 10, 2011

Authors

Luke Lantta

Is A Trustee’s Lawyer Required To Advise His Client Not To Breach Fiduciary Duties?

October 10, 2011

by: Luke Lantta

Somewhere Kirby E. Cole sits in prison, having plead guilty to mail fraud.  As trustee for the Phillips Foundation, Cole breached his fiduciary duties to the Foundation by fraudulently transferring Foundation property and mineral rights for free to himself.  So, Cole did what any imprisoned former trustee would do – he sued his lawyer.

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