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IT WAS ALLEGED DEFENDANTS-ATTORNEYS DID NOT INSTRUCT THE DECEDENT TO REVOKE THE TOTTEN TRUSTS SO THE FUNDS WOULD BE DISTRIBUTED IN ACCORDANCE WITH HER WISHES AS SET OUT IN THE WILL AND TRUST DRAFTED BY DEFENDANTS; DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants-attorneys should not have been granted summary judgment in this legal malpractice action brought by the executor of the estate of attorneys’ client. It was alleged two bank accounts were Totten Trusts which passed outside of the will and therefore were not distributed as decedent wished (as was set out in the will and trust drafted by defendants). As a result one of decedent’s sons, whom decedent intended to disinherit, received half of the Totten Trusts:

The Supreme Court should have denied that branch of the defendants’ motion which was for summary judgment dismissing the amended complaint. The defendants failed to submit sufficient evidence establishing … that they exercised the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession. In addition, the court erred in determining that the defendants established, prima facie, that the decedent’s estate did not sustain actual and ascertainable damage as a result of the defendants’ alleged negligence in failing to advise the decedent to revoke the Totten Trusts prior to her death. Schmidt v Burner, 2022 NY Slip Op 01191, Second Dept 2-23-22

 

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