Stevens v Wheeler  2022 NY Slip Op 31699(U) April 27, 2022 Supreme Court, New York County Docket Number: Index No. 151129/2021 Judge: David B. Cohen is a complex statutory legal malpractice case which turns on how a Rhode Island Estate law treats a spouse in her fight with a son over the deceased father’s estate.  We see the all too common situation where the child moves the father away and restricts the wife’s ability to visit him.  We see the Estate suing the attorneys.

“Preliminarily, defendants’ assertion that plaintiffs lack standing to bring this action because they are not in privity with defendants is without merit. “[P]rivity, or a relationship
approaching privity, exists between the personal representative of the estate planning attorney” (Estate of Schneider v Finmann, 15 NY3d 306, 309 [2010]). The estate stands in the shoes of the decedent and, therefore, has the capacity to maintain a malpractice claim on behalf of the estate (id.). The personal representative of the estate should not be prevented from raising a negligent estate planning claim against the attorney who caused harm to the estate (id.). As such, plaintiffs, executors of the decedent’s estate, may properly pursue claims against defendants for improper estate planning, resulting in damages to the estate (see id.). “Moreover, such a result comports with EPTL 11-3 .2(b ), … which generally permits the personal representative of a decedent to maintain an action for ‘injury to person or property’ after that person’s death” (id.).

Here, plaintiffs claim that defendants, by counseling that the Will should be probated in Rhode Island under Rhode Island law, rather than in New York under New York law, acted
contrary to James W. Stevens’ intended testamentary scheme of bequeathing his residuary estate equally among Mary K. Stevens, Hardie Stevens, and Mark W. Stevens, thus resulting in Mary K. Stevens exercising an alleged right of election under Rhode Island law and obtaining a larger portion of the residuary estate, and Hardie M. Stevens obtaining a lesser portion, than was contemplated by the Will and Codicils. Applying the established standard, this Court concludes that, to the extent that the Complaint alleges that James W. Stevens and the Estate sustained damages as a result of defendants’ actions, plaintiffs, as co-executors, may properly bring an action on behalf of the Estate (see id.). ”

“As discussed previously, the Will and Codicils do not contain any choice of law provisions, and James W. Stevens died in Rhode Island, where he owns a home. Plaintiffs
maintain that defendants’ advice that the Will should be probated in Rhode Island under Rhode Island law constituted a breach of their duty to represent James W. Stevens and the Estate since, under Rhode Island law, Mary K. Stevens is entitled to waive her bequests under the Will and elect to take a statutorily prescribed share in an amount generally equal to one-half of James W. Stevens’ personal property. Plaintiffs assert that the election resulted in Mary K. Stevens obtaining a portion of the residuary estate greater than the amount provided to her in the Will. However, a review of the plain language of the Rhode Island statutory scheme undermines plaintiffs’ position. Rhode Island General Law §33-28-l(a) provides that the surviving spouse of a decedent who dies domiciled in this state has a right of election to take an elective share equal to “(1) [t]he life estate and allowance in an intestate’s real estate titled in the name of the decedent individually at the time of the decedent’s death pursuant to §§33-1-5 and 33-1-6” and “(2) [t]he share of the decedent’s personal estate subject to probate pursuant to §33-1-10. The elective share may be taken in kind or the value thereof.” Sections 33-1-5 and 33-1-6 are inapplicable here since James W. Stevens did not die intestate. Similarly, §33-1-10 does not apply since it concerns “[s]urplus personalty not bequeathed,” not an expressly devised residuary estate. “If the language is clear on its face, then the plain meaning of the statute must be given effect” (Gilbane v Paulas, 576 A2d 1195, 1196 [R.I. 1990]). Thus, §33-28-1 does not provide Mary K. Stevens with a right of election to obtain a larger portion of the residuary estate than that contemplated by the Will.

Moreover, defendants establish by documentary evidence that they did not breach any duty of care owed to plaintiffs, and that the Estate was not damaged by the probate of the Will in Rhode Island. The Stipulated Order and ensuing Agreement entered into between Mary K. Stevens and Hardie M. Stevens, which resolved the Objection filed by Mary K. Stevens, set forth the portion of the residuary estate that she was to receive. The decision to resolve the Objection was the sole basis for the amendment to Mary K. Stevens’ share of the residuary estate. The plaintiffs do not allege that decision to resolve the Objection was compelled by Rhode Island law. Rather, Hardie M. Stevens acknowledges that he entered into the Agreement with Mary K. Stevens to amend and restate the residuary shares under the Will (see Stevens Affid., NYSCEF Doc. No. 28). It is undisputed that defendants did not represent Hardie M. Stevens in connection with the decision to enter into the Stipulated Order and Agreement. Thus, defendants are entitled to dismissal of the negligence claim.”