Here is a case which, on the one hand point up how disfunctional families can become, while on the other hand, point out how intertwined and difficult estate planning with mutual trusts and wills are.  From a reading of this case, we think the family really did not like one of the sons, and the parents [or was one a step-parent ?] disinherited one kid.  This simply led to a lot of litigation, and in the end, the kid got a more or less fair share.  It looks like everyone paid big legal fees to get to that position.

"Following Grace’s death, Elliot reviewed both his mother’s and step-father’s will. Elliot filed a caveat against the probate of Grace’s will, alleging undue influence. Additionally, Elliot filed an exception to the approval of the trustees’ final accounting, following the administration of Sidney’s estate. Elliot challenged the distribution of the assets of Sidney’s estate to Barry and Leslie. A Jamieson partner, other than Leavitt-Gruberger, defended the estates of Grace and Sidney against Elliot’s claims and appeared on behalf of the co-trustees. Both sides filed motions for summary judgment. Contrary to the arguments presented, the reviewing judge determined that the issues presented posed a factual dispute as to Sidney’s intention in drafting the provisions of Part "B"; additional discovery and a plenary hearing were ordered. To avoid the additional expense of the contested proceeding, plaintiffs settled Elliot’s claims against both estates for $130,000.

Thereafter, plaintiffs filed the instant legal malpractice action, contending that Leavitt-Gruberger negligently drafted the will. Plaintiffs asserted that when taken as a whole, the provisions of Part "B" failed to unambiguously satisfy Sidney’s intention because it contained confusing and competing instructions to the trustees. Plaintiffs argue that the trust presented "inconsistencies that created the impression that Grace was a major beneficiary." This ambiguity prevented the court from dismissing Elliot’s action, and necessitated a plenary hearing to decide whether "it was inappropriate to deplete the trust of all assets while Grace was still alive." Further, because "trustees owe a fiduciary duty to all beneficiaries," Leavitt-Gruberger placed plaintiffs in an unsupportable position as trustees, by advising them to distribute trust assets to themselves, as beneficiaries, to the exclusion of Elliot. Such draftsmanship was "irresponsible and caused plaintiffs to incur enormous legal fees defending Elliot’s law suit."

Defendants’ motion for summary judgment was returnable on July 21, 2006. Plaintiffs argued Leavitt-Gruberger did not clearly draft the testamentary provisions to unambiguously present Sidney’s desire to allow Elliot to share in his estate only if he ended his estrangement with his mother. Plaintiffs urged that the proper estate planning vehicle to accomplish Sidney’s purpose was a limited power of appointment. At the very least, plaintiffs argued that the documents should have specifically thwarted any self-dealing claims if the trustees exercised the granted powers and depleted the assets. Additionally, plaintiffs stated that the power to deplete principal contained in section (b)(2) of Article Third was limited by an ascertainable standard so that principal distributions were to satisfy only needs similar to maintenance, support, education, and health. Leavitt-Gruberger’s advice to the contrary was incorrect.

After concluding plaintiffs failed to prove by clear and convincing evidence that the trust provisions as written did not properly reflect Sidney’s intent, the motion judge determined the benefits designated for Grace were "alternative provisions" to those allowing Barry and Leslie to distribute the principal in their non-reviewable discretion. The motion judge concluded that the trust clause was "broad" and that "it permits the trust to be exhausted . . . including the whole thereof. . . . [I]t’s my conclusion that there is nothing ambiguous about this, it’s not a question of ambiguity." "