It can be difficult to overestimate the acrimony between siblings when the parents’ estates and inheritance comes into play.  As an example see Schmidt v Burner  2022 NY Slip Op 01191 Decided on February 23, 2022
Appellate Division, Second Department.  Here days before her death, the mother seeks to disinherit one son.  The attorneys are hired to do so, but fail to revoke a Totten Trust.  Disinherited son gets the bank account, and other son sues the attorneys.

“In or about March 2013, the decedent, Evelyn Schmidt, retained the legal services of the defendants for estate planning purposes. At the time, the decedent owned, among other things, two bank accounts held in trust for the decedent’s sons, the plaintiff, Frederick A. Schmidt, and Peter Schmidt. The decedent allegedly informed the defendants that upon her death, she did not want Peter to receive any of her assets, and that she wanted $1,000 of her assets to go to her sister-in-law’s daughter and her remaining assets to go to the plaintiff. On April 1, 2013, the decedent executed a last will and testament (hereinafter the will), which, among other things, nominated the plaintiff as sole executor, and provided that all of the decedent’s probate estate pour-over into the Evelyn Schmidt Irrevocable Trust (hereinafter the irrevocable trust). On that same day, the decedent executed the irrevocable trust, which appointed the plaintiff as sole trustee, and provided that after the decedent’s death, the plaintiff, as “Trustee[,] shall distribute the remaining trust property to [the plaintiff] outright, free of trust.” The irrevocable trust stated that the decedent was “specifically disinheriting Peter Schmidt and his descendants.” The defendants drafted the will and the irrevocable trust.

On April 7, 2013, the decedent died. Thereafter, the plaintiff was appointed executor of the decedent’s estate. The Surrogate’s Court issued letters testamentary to the plaintiff. In or about July 2014, the plaintiff, as executor of the decedent’s estate, commenced this action alleging, inter alia, that the defendants provided negligent legal advice to the decedent with regard to her estate planning. Thereafter, the plaintiff was granted leave to amend the complaint.

In the amended complaint and the bill of particulars, the plaintiff alleged, inter alia, [*2]that prior to the decedent’s death, the decedent and the plaintiff informed the defendants that the decedent had “two bank accounts maintained at Apple Bank which, collectively, contained almost $600,000,” and that these accounts were Totten Trusts. The amended complaint and the bill of particulars alleged that the defendants prepared an estate plan for the decedent that did not reflect her wishes because the proceeds of the Totten Trusts did not pass through the decedent’s estate, were not made part of the irrevocable trust upon her death, and were distributed to both the plaintiff and Peter. The amended complaint and the bill of particulars alleged, inter alia, that the defendants negligently failed to plan for the distribution of the decedent’s assets in accordance with her instructions, to investigate and conduct due diligence concerning the nature of the Totten Trusts, and to ensure that the decedent had terminated the Totten Trusts prior to her death. The plaintiff alleged that but for the defendant’s negligence, the irrevocable trust “would have received a distribution of all of the assets of [the decedent],” with the exception of a $1,000 bequest to the decedent’s sister-in-law’s daughter.”

“To succeed on a motion for summary judgment dismissing a legal malpractice action, a defendant must present evidence in admissible form establishing that at least one of the essential elements of legal malpractice cannot be satisfied (see Buczek v Dell & Little, LLP, 127 AD3d 1121, 1123; Valley Ventures, LLC v Joseph J. Haspel, PLLC, 102 AD3d 955, 956). Those elements require a showing that (1) the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession and (2) the attorney’s breach of this duty proximately caused the plaintiff to sustain actual and ascertainable damages (see Bells v Foster, 83 AD3d 876, 877; see also Bua v Purcell & Ingrao, P.C., 99 AD3d 843, 845). The causation element requires a showing that the injured party “‘would have prevailed in the underlying action or would not have incurred any damages, but for the lawyer’s negligence'” (Bells v Foster, 83 AD3d at 877, quoting Kennedy v H. Bruce Fischer, Esq., P.C., 78 AD3d 1016, 1018 [internal quotation marks omitted]). The defendant must affirmatively demonstrate the absence of one of the elements of legal malpractice, rather than merely pointing out gaps in the plaintiff’s proof (see Quantum Corporate Funding, Ltd. v Ellis, 126 AD3d 866, 871).

The Supreme Court should have denied that branch of the defendants’ motion which was for summary judgment dismissing the amended complaint. The defendants failed to submit sufficient evidence establishing, prima facie, that they exercised the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession. In addition, the court erred in determining that the defendants established, prima facie, that the decedent’s estate did not sustain actual and ascertainable damage as a result of the defendants’ alleged negligence in failing to advise the decedent to revoke the Totten Trusts prior to her death.”

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Andrew Lavoott Bluestone

Andrew Lavoott Bluestone has been an attorney for 40 years, with a career that spans criminal prosecution, civil litigation and appellate litigation. Mr. Bluestone became an Assistant District Attorney in Kings County in 1978, entered private practice in 1984 and in 1989 opened…

Andrew Lavoott Bluestone has been an attorney for 40 years, with a career that spans criminal prosecution, civil litigation and appellate litigation. Mr. Bluestone became an Assistant District Attorney in Kings County in 1978, entered private practice in 1984 and in 1989 opened his private law office and took his first legal malpractice case.

Since 1989, Bluestone has become a leader in the New York Plaintiff’s Legal Malpractice bar, handling a wide array of plaintiff’s legal malpractice cases arising from catastrophic personal injury, contracts, patents, commercial litigation, securities, matrimonial and custody issues, medical malpractice, insurance, product liability, real estate, landlord-tenant, foreclosures and has defended attorneys in a limited number of legal malpractice cases.

Bluestone also took an academic role in field, publishing the New York Attorney Malpractice Report from 2002-2004.  He started the “New York Attorney Malpractice Blog” in 2004, where he has published more than 4500 entries.

Mr. Bluestone has written 38 scholarly peer-reviewed articles concerning legal malpractice, many in the Outside Counsel column of the New York Law Journal. He has appeared as an Expert witness in multiple legal malpractice litigations.

Mr. Bluestone is an adjunct professor of law at St. John’s University College of Law, teaching Legal Malpractice.  Mr. Bluestone has argued legal malpractice cases in the Second Circuit, in the New York State Court of Appeals, each of the four New York Appellate Divisions, in all four of  the U.S. District Courts of New York and in Supreme Courts all over the state.  He has also been admitted pro haec vice in the states of Connecticut, New Jersey and Florida and was formally admitted to the US District Court of Connecticut and to its Bankruptcy Court all for legal malpractice matters. He has been retained by U.S. Trustees in legal malpractice cases from Bankruptcy Courts, and has represented municipalities, insurance companies, hedge funds, communications companies and international manufacturing firms. Mr. Bluestone regularly lectures in CLEs on legal malpractice.

Based upon his professional experience Bluestone was named a Diplomate and was Board Certified by the American Board of Professional Liability Attorneys in 2008 in Legal Malpractice. He remains Board Certified.  He was admitted to The Best Lawyers in America from 2012-2019.  He has been featured in Who’s Who in Law since 1993.

In the last years, Mr. Bluestone has been featured for two particularly noteworthy legal malpractice cases.  The first was a settlement of an $11.9 million dollar default legal malpractice case of Yeo v. Kasowitz, Benson, Torres & Friedman which was reported in the NYLJ on August 15, 2016. Most recently, Mr. Bluestone obtained a rare plaintiff’s verdict in a legal malpractice case on behalf of the City of White Plains v. Joseph Maria, reported in the NYLJ on February 14, 2017. It was the sole legal malpractice jury verdict in the State of New York for 2017.

Bluestone has been at the forefront of the development of legal malpractice principles and has contributed case law decisions, writing and lecturing which have been recognized by his peers.  He is regularly mentioned in academic writing, and his past cases are often cited in current legal malpractice decisions. He is recognized for his ample writings on Judiciary Law § 487, a 850 year old statute deriving from England which relates to attorney deceit.