The Appellate Division recently decided a case addressing the duty of a lawyer to identify a step-son as a beneficiary under the step-mother’s estate.

In that case, the step-mother engaged a law firm to draft her will, under circumstances where she was diagnosed with terminal cancer. During the initial interviews, the step-mother voiced concern about identifying her step-son as a beneficiary under the will because of his substance abuse and fear that his interest in the estate would be consumed by his disability and/or employment benefits he was receiving which would have had to be repaid to the government.  Ultimately, the step-mother included the step-son in the Will as one of the four beneficiaries to her estate.  Later, the step-mother instructed the law firm to remove the step-son from the Will and, as a result, the law firm created a second Will disinheriting the step-son.  The lawyer in the law firm who prepare the will and saw its execution said that the step-mother was clear and lucid in her instructions and that she executed the will without outside influence.

The step-son then contested the will seeking to establish a constructive trust.  Ultimately, the claim was settled.

Later, the step-son sued the attorney who prepared the second Will and another lawyer who the step-son claimed failed to advise him that he had a malpractice action against the law firm. The case was ultimately dismissed on the law firm’s motion for summary judgment. On appeal, the court said that ordinarily an attorney drafting a will has only a duty to the testator unless there was some special duty to a beneficiary. The court also said that the step-son interest was inconsistent with the interest of the estate and contrary to the step-mom’s manifested intention in the will and therefore the law firm had no duty to the step-son.