NY Appellate Court Holds Beneficiary Can't Sue Attorney Who Drafted Will & Trust - Lack of Privity

On April 4, 2023, an appeals court affirmed New York County Supreme Court Justice Jaffe who dismissed a legal malpractice claim, disguised as a "simple negligence" claim, finding that a disgruntled prospective beneficiary of an Estate cannot sue the attorney who planned the Estate or drafted the Will and Trust Agreement. The reason for the dismissal is a concept known as lack of contractual privity, because the attorney in these situations was retained and paid by the testator or person who died - not the beneficiary. The beneficiary usually has had no relationship with the attorney who represented the interests of the testator and there is no fiduciary duty owed by the attorney to the prospective beneficiary. But, there are exceptions to this rule.

The Appellate Division, First Department stated that none of the exceptions to the lack of privity rule were present in this case. Those exceptions were described as: "fraud, collusion, aiding and abetting, malicious acts or other special circumstances." The Court noted that the "strict privity requirement here protects estate planning attorneys against uncertainty and limitless liability in their practice." Phillips v Murtha, 2023 NY Slip Op 01767

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