FL: Underlying probate representation
Facts: Personal representatives of Client’s brought an action against their probate Attorney asserting claims of breach of fiduciary duty, constructive fraud, civil conspiracy, negligence and unjust enrichment. Client asserts that Attorney wrongfully procured J.P. Morgan Trust Company, N.A.’s (“J.P. Morgan”) appointment as corporate fiduciary and caused the estate administration to be more expensive. Clients sought compensation for all avoidable probate expenses and the return of all fees paid to Attorney by the decedent. The trial court entered final judgment of $1,043,430, in favor of Client. Attorney appeals.
Issue: Whether the trial court properly determined that Attorney was liable to the estate for administration expenses and damages arising out of the appointment of J.P. Morgan?
Ruling: Yes. Attorney had a duty to fund a revocable trust during decedent’s lifetime. There was sufficient evidence that Attorney implicitly agreed to do so. The appellate court noted that Client could collaterally attack the appointment of J.P. Morgan.
Lesson: A testator’s estate can maintain a legal malpractice action against attorney who prepared the will of the deceased in order to address issues not remedied in probate court. A breach of fiduciary duty may be maintained where, “a relationship exists[s] with respect to the acts or omissions upon which the malpractice claim is based,” and a party may demonstrate this relationship by showing that his attorney implicitly agreed to undertake these responsibilities. Lane v. Cold, 882 So.2d 426, 438 (2004).