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Where there's a will, there's not always a way.

Taffaro v. Connell (A-4928-09T2, 2011 WL 4502077 (N.J. Super. App. Div. 2011) is a case involving a family member who felt spurned, and a will. The case further outlines the attorney-client relationship, and what will suffice to provide the basis for a legal malpractice claim.

Vincent Taffaro (Vincent) had 2 children from his first marriage, Scott and the plaintiff. When their mother passed away, Vincent married Dolores Taffaro (Dolores). Dolores and Vincent had 2 children together; Susan and Vincent Jr. Vincent died in 1998, and devised his house by will to Dolores, his wife at death. In late 1999, Susan set up an appointment between Connell, an attorney and Dolores. By this time, Dolores had become terminally ill, and felt it was the best time to craft a will.

While meeting with Connell concerning her will, Dolores exhibited some hesitation regarding her step-son Michael. She and Michael had a strained relationship, which was personified by her belief that he was a substance abuser, and did not treat certain family members properly. While hesitating about disinheritance, she also acknowledged to Connell that she was concerned he would "make trouble" if he was disinherited. After meeting with Connell at her home, Dolores decided to include Michael in her will. Connell drafted a will in accordance with Dolores's wishes, and eventually reviewed it with her at home. Dolores was still hesitant to include Michael, but decided to include him because she believed it best for her family. Dolores executed this copy of the will December 2, 1999. Despite misgivings about the plaintiff, he was included in the first draft of the will as an equal beneficiary with his siblings.

A week later Dolores's health began to fail beginning with hospitalization until December 10. She was readmitted on December 17, and would remain there until her death on December 24. When Dolores was readmitted, she called Connell and expressed second thoughts about her will. According to testimony from Connell, Dolores expressed an intention to exclude the plaintiff. She called his office while being of clear mind, decided to exclude the plaintiff from her will. She did not want her estate to be used to fund a lifestyle of substance abuse. Connell drafted a second will in accordance with Dolores's wishes. It was unclear from testimony whether Dolores executed the will, but the will was probated following Dolores's death.

Once the will went through probate, Scott and Michael filed a verified complaint to put a constructive trust over Dolores's estate. The complaint was filed against their brothers and sisters, and eventually settled. Michael received a $110,000 settlement from that case.

After the settlement, Michael, the plaintiff in this case consulted an expert to file a legal malpractice case. The expert opined that Connell committed malpractice by not having the second will validly witnessed as required by New Jersey statutes. The element of legal malpractice this claim raised was duty. If the attorneys had a duty to the plaintiffs, then there may be liability. The court found that based on Petrillo v. Bachenberg, 132 N.J. 472, 479 (1995), attorneys have a limited duty of care to third parties. Petrillo stated that attorneys only owe a duty of care to third parties when they prepare documents knowing that those parties would reasonably and foreseeably rely on them.

Wills do not meet the above criterion. An attorney preparing a will owes a duty only to the testator unless the attorney undertook a duty to a beneficiary. In this case, Connell owed a duty only to Dolores, the testator. Furthermore, an attorney specifically owes no duty of care to a potential beneficiary if a beneficiary's interest is contrary to that of the estate and will of the testator. Because Connell was specifically carrying out Dolores's intentions, he owed no duty to Michael, the plaintiff. Connell's only duty was to prepare a will in accordance with Dolores's wishes. Furthermore, Michael's interest was adversarial to the estate and second will which precluded any duty of care between Connell and Michael.

The most important part of this case is that wills and estate documents are a completely different realm of law than most other situations. When dealing with wills, it is sometimes difficult to figure out who the real client is. For attorneys, it is important to recognize that their duty flows to the testator, for whom a will is written. While a beneficiary may sometimes believe a loved one's attorney owes them a duty of care, it is important to recognize that an attorney must explicitly undertake a duty to a beneficiary, in order for a duty to be created. Without this undertaking, no legal malpractice claim related to a will is viable.

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