If a lawyer is hired to draw up amendments to a Trust and the court later finds them invalid, is this malpractice for the lawyer

Wills And Estates 12 views 2 answers
My parents both had separate irrevocable trusts. My mother was incapacitated for the last 8 years of her life. My father had a lawyer draw up amendments to my mother's trust, which included distributions to beneficiaries. My dad died in 2010, my mother in 2011, at which time distributions were made. Now, after a long suit by one of the beneficiaries, a judge has found the amendments invalid and has ordered beneficiaries to pay back to trust money they received 4 years ago. Since my father paid the lawyer to advise and make the amendments, is the trust lawyer responsible for the amendments not being legal? Malpractice suit? Beneficiaries have already spent the money given to them? Appeal?

Attorney Answers

2
James Frederick ·
This is a very difficult question. In most cases, the lawyer is not responsible, even if the documents do not accomplish what the clients had intended. But if the invalidity was due to the negligence or misconduct of the lawyer, the answer could be different. The facts matter in all cases, but would be especially critical in your situation. I would review this with a malpractice lawyer and see whether or not there may be a basis for a claim. If you have a decent argument and if the lawyer has malpractice coverage, then the insurance company might try to settle your claim, rather than defend against it. James Frederick
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Jennifer H ·
The answer to your question is extremely fact-specific, unfortunately. Much will depend upon the reasons why the amendments were found to be invalid, the communications back and forth between the lawyer and your father (for example, did the lawyer advise your father that the amendments might not be effective, but your father instructed him to proceed anyway?) , the law in your state regarding malpractice, etc. You should definitely consult with a local lawyer who specializes in attorney malpractice (and possible with an estate planning lawyer as well - but the malpractice attorney may have contacts in that area) to discuss the strength of a potential claim.
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