WHERE THERE'S A WILL, THERE'S A WAY OUT:
ACCRUAL OF MALPRACTICE CLAIMS INVOLVING WILL PREPARATION
By STEPHEN A. COPLOFF
Consider the following scenario: A trusts and estates attorney prepares a will for his client and, after the will has been executed, maintains possession of the original for safe-keeping. However, unbeknownst to both the attorney and the client, the will contains an error of some sort resulting from the attorney's negligence. Many years go by and the attorney and the client have no further contact. At some point the client dies, and his executors ask the attorney to furnish them with the original will. The attorney then sends the will to the executors. Subsequently, the executors discover for the first time an error in the will that requires a construction proceeding or, in the extreme, invalidates the will. As a result thereof, the estate incurs real, quantifiable damages. The executors then sue the attorney for malpractice. Assuming that more than three years have passed since the attorney drafted the will, that the attorney was negligent in his preparation of the will, that his negligence caused the estate to incur damages, and that his negligence was not discovered until after the client died, the question arises whether the claim is barred by the applicable statute of limitations under CPLR 214(6). Although the result is harsh, the answer is "yes."
Remarkably, there is very little New York case law addressing this issue.1 In Goldberg v. Bosworth, 29 Misc. 2d 1057, 215 N.Y.S.2d 849 (Sup. Ct. Kings Co. 1961), a malpractice action was brought against an attorney as a result of his alleged negligence in connection with the preparation of a will for the plaintiff's mother. According to the complaint, the attorney "negligently requested the plaintiff to be an attesting witness to the will." 215 N.Y.S.2d at 851. The will was executed in 1953 and the attorney retained possession thereof. About seven years later, in December 1959, the plaintiff's mother died. In January 1960, the will was filed for probate. "It was then that plaintiff allegedly discovered that the devise to him had been voided by having acted as an attesting witness." Id. at 851.
The plaintiff commenced an action for legal malpractice against the attorney in
1961, eight years after the will had been prepared and about one year after the
death of the testatrix. The attorney moved to dismiss the action on the ground
that it was barred by the statute of limitations. The attorney argued that the
claim accrued when the charged negligence allegedly occurred in January 1953
upon execution of the will. The plaintiff argued that, inasmuch as the attorney
retained possession of the will and failed to notify the plaintiff or the
testatrix of the will's defect, his negligence continued.
Noting that the attorney was accused, in essence, of having failed to use
diligence and the skill required and expected of an attorney in the execution of
the will, the court held that "the breach of duty, the negligence, occurred on
[the date that the will was executed]." 215 N.Y.S.2d at 852. Significantly, the
court further held:
The action for malpractice . . . had accrued upon occurrence of the negligence and not upon plaintiff's alleged discovery of the malpractice, after the testatrix' death . . . . Id. at 853.
Moreover, the court rejected not only the plaintiff's argument that his belated discovery of the alleged negligence somehow tolled the running of the statute of limitations, but also his argument that the attorney's retention of the will and failure to notify the plaintiff of his alleged negligence served to extend the period of negligence. According to the court, "[n]o further negligent act on the part of the defendant [was] shown." Id.
In view of the foregoing, the court granted the attorney's motion to dismiss the action. Similar facts were recently presented to the Supreme Court, Putnam County, in Williams, et ano v. Pinkus, Lipton & Brown, et ano, Index No. 99/2000. There, the attorneys were retained to prepare a will, which was executed and allegedly misassembled in 1988. It appeared that the attorneys provided no further legal services to the testatrix. About eight years later, in November 1996, the testatrix died. In April 1997, the attorneys mailed the original will to the executors' counsel, who allegedly discovered that the will had been assembled improperly. As a result of the alleged improper assembly of the will, the estate incurred additional costs and expenses in connection with a construction proceeding.
In January 2000, the executors commenced an action for legal malpractice. The attorneys moved to dismiss the complaint on the ground it was barred by the statute of limitations. The argument was simple—the alleged negligence occurred in 1988, but the action was not commenced until eleven years later. In response, the executors argued (a) that because the will was retained by the attorneys in their law offices, the statute of limitations was tolled by the application of the continuous representation doctrine, and (b) that the cause of action for legal malpractice did not arise until there were damages.
In a decision dated July 6, 2000, the Court rejected both arguments and granted the motion to dismiss.
With respect to the first argument, noting that Goldberg was the only New York case on point, the Court agreed with Goldberg that the retention of the will by itself could not be deemed to constitute continuous representation. As for the second argument, the Court found that the law was clear (as well as plentiful) that malpractice occurs upon the commission of the act, not upon its discovery.2 Thus, the Court granted the motion to dismiss.
Not withstanding the foregoing, the Court in dicta raised two situations in which such a case might survive a motion to dismiss on statute of limitations grounds. First, the continuous representation doctrine might apply if the attorney discovered the error and attempted to correct it or indicated to the testator that he would do so. Second, if an attorney fraudulently concealed his malpractice, he might be equitably estopped from asserting the statute of limitations.
Thus, unless one of those possible tolling situations exists, an attorney is likely to escape any liability for his malpractice in connection with the preparation of a will if the testator lives for at least three years after the will is executed.
1 See generally, R. Mallen & J. Smith, Legal Malpractice § 21.18 (4th ed. 1996),
for a discussion of this issue.
2 The Court cited Glamm v. Allen, 57 N.Y.2d 87, 453 N.Y.S.2d 674 (1982); Shumsky
v. Eisenstein, __A.D.2d__, 704 N.Y.S.2d 113 (2d Dep't 2000); Goicoechea v. Law
Offices of Stephen R. Kihl, 234 A.D.2d 507, 651 N.Y.S.2d 198 (2d Dep't 1996);
and Boyd v. Gering, Gross & Gross, 226 A.D.2d 489, 641 N.Y.S.2d 108 (2d Dep't
1996).
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