Trusts & Estates Attorney Allegedly Breaches Duty Of Care


Legal Malpractice ExpertThis case involves the trust of an elderly woman with 3 children. Following her husband’s death, the woman engaged an attorney to prepare a trust, last wills and testaments, and related estate-planning documents. There was a provision written into the trust that prohibited the woman’s children from buying property from the trust. Five years later, after the woman’s death, 2 of her children were sued by the Trustors for attempting to violate this provision. The 2 children alleged that the attorney who prepared the trust breached her duty of care by informing the plaintiffs that they could, in fact, buy the property from the trust. It was further alleged that the attorney failed to examine the trust documents to ascertain whether the trust was subject to revocation and/or amendment.

Question(s) For Expert Witness

  • 1. Please describe your background in trusts and estates.
  • 2. What duty did the attorney owe to trustees when advising them on the structural terms and conditions of the sale of the property?

Expert Witness Response E-072506

I have been a trusts and estates lawyer for almost 40 years. I joined the estate planning section of a western state’s bar in 1980, and I have served on the executive committee for 30+ years. I was a Partner at an estate planning and commercial litigation firm for many years. Now, I focus on estate, tax, and business planning, and estate/trust administration for another prestigious law firm. Typically, a trust’s property cannot be bought out without specific measures. I’d want to see what was written and would be curious to know why the defendant advised the trustee that the property could be purchased.

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