Only clients may sue their attorney in legal malpractice.  It really does not matter (so much) whether the attorney made a mistake that hurt you.  What matters is whether you (and that means you, not your father) hired the attorney.  So, beneficiaries to estates that don’t get what they should can rarely sue the attorney who drew up the papers.

As an example, Rhodes v Honigman  2015 NY Slip Op 06907  Decided on September 23, 2015  Appellate Division, Second Department shows us that daughters who did not get the trust that their father intended for them may not sue the attorney who drew up the papers.  This is true even though the papers allowed their mother to step in between and divert the money to herself.

“In July 2007, the decedent and his wife retained the legal services of the defendant for estate planning purposes. On November 19, 2007, the decedent executed a revocable living trust (hereinafter the Trust), the terms of which included specific directives as to the proportional distribution of assets upon his and his wife’s respective deaths, and identified the wife as trustee and named one of the daughters as a successor trustee upon the happening of certain events. The Trust, which was prepared by the defendant, provided that, upon the decedent’s death, the remaining principal and accumulated income would be held in trust for the benefit of the decedent’s wife and that, upon his wife’s death, the remainder would be distributed in prescribed amounts to various named charities, and to the decedent’s daughters by a previous marriage, with two of the daughters each receiving a designated percentage, and another daughter receiving a specific sum of $25,000. The decedent died on July 15, 2009. Certain amendments to the Trust, executed shortly before the decedent’s death, are the subject of litigation in a proceeding that was pending in Surrogate’s Court, Nassau County, under File No. 357224, at the time this appeal was perfected.

The plaintiffs alleged that the defendant committed legal malpractice in his drafting of the Trust by providing that the wife would be a cotrustee of the Trust, whereby she would have the power to transfer all or part of the principal to herself, thereby divesting the decedent’s daughters of their dispositions.

The Supreme Court properly granted those branches of the defendant’s motion pursuant to CPLR 3211(a) which were to dismiss the causes of action asserted by the decedent’s three daughters in their individual capacities for lack of standing. Lack of privity with an estate planning attorney is a bar against a beneficiary’s claims of legal malpractice against that attorney [*2]absent fraud, collusion, malicious acts, or other special circumstances (see Estate of Schneider v Finmann, 15 NY3d 306, 310), none of which are alleged in this case.”