NY: Widow Lacks Standing to Sue Husband's Lawyers Over Mishandled Will, Judge Finds

A widow who claims that the mishandling of her husband's will by his attorneys will cost her $9 million may not pursue a malpractice claim against them, a Manhattan judge has ruled.
Supreme Court Justice Marilyn Shafer ruled that there was neither privity nor even "near privity" between the widow, Jeanne Sorenson Leff, and the attorneys.

Shafer discounted Leff's argument that her occasional interactions with the attorneys, including their preparation of her own will, created an attorney-client relationship regarding her husband's estate planning. "[T]he mere fact that plaintiff might have had a 'subjective belief as to the existence of an attorney-client relationship' is not enough to create [one],"

The decision raises the question of who, if anyone, may sue in New York for malpractice when attorneys make mistakes in planning estates. "In New York, we're one of the few states left with the privity doctrine. When the decedent died, he was the only one who had privity and he was the only one who could sue." Not even the administrator or executor of a decedent's estate may stand in his stead for a malpractice action, according to Schlesinger, whose firm is not involved in the Leff case. Nationally, the law is evolving away from that position, he added, as states move to abandon the doctrine.

Shortly after Mr. Leff's death, his son, Adam, made a claim pursuant to Mr. Leff's 1974 separation agreement with his first wife, in which Mr. Leff agreed that "no less than one-half of his probate estate" would pass to their son, Adam. Mr. Leff's attorneys had not considered that agreement when drafting his estate plan -- they later testified that they only discovered the agreement in Cunningham's file cabinet when responding to Adam's claim, shortly after Mr. Leff's death. Adam and Mr. Leff's estate entered into a settlement agreement under which Adam received approximately $20 million.

Ms. Leff subsequently filed the present suit contending the lawyers committed malpractice by failing to inform Mr. Leff about the existence of the separation agreement, and thereby neglected to consider it when developing his estate plan. That failure, Ms. Leff argued, interfered with Mr. Leff's intent, as expressed in his will, to leave her one half of his estate. She claims the mistake cost her approximately $9 million.

In a decision handed down last week, Justice Shafer ruled that Ms. Leff does not have standing to pursue the claim. "This court finds that the evidence does not indicate that plaintiff was ever involved in a joint estate plan with her husband, or that a relationship approaching 'near privity' with defendants vis-a-vis Leff's estate plan existed such as might make defendants plaintiff's attorneys with regard to Leff's personal estate plan," Shafer concluded in granting the defendants' motion for summary judgment.