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Claims Against a Drafting Trust Attorney

Question Presented
What is the law on legal malpractice in probate against a trust attorney who drafted a trust?

The law on legal malpractice in probate against a trust attorney who drafted a trust generally requires the plaintiff to establish that the attorney breached a duty of care, that the breach caused the plaintiff's damages, and that the plaintiff actually suffered damages. However, there are additional considerations, such as the statute of limitations, the attorney's duty to the client, and the potential for conflicts of interest, which intertwine beneficiary rights and trust beneficiary rights.

First, the plaintiff must establish that the trust attorney breached a duty of care, a standard encompassing both trust beneficiary rights and beneficiary rights. In Chang v. Lederman, the court found that the plaintiff failed to allege the necessary elements to establish that the attorney owed her a duty of care, involving potential conflicts of interest between a trustee and beneficiary. Chang v. Lederman, 172 Cal.App.4th 67 (Cal. Ct. App. 2009). In Gordon v. Cohen, the court clarified that the attorney's duty can extend to non-clients, but only if the client's intent to benefit the non-client is "clear," "certain," and "undisputed," underscoring the importance of beneficiary designation and beneficiary claims. Gordon v. Cohen, No. B313903 (Cal. Ct. App. Feb. 23, 2023).

Second, the plaintiff must show that the attorney's breach caused the plaintiff's damages. In McDaniel v. Gile, the court outlined the elements of a cause of action for professional negligence, which include a proximate causal connection between the negligent conduct and the resulting injury. McDaniel v. Gile, 230 Cal.App.3d 363 (Cal. Ct. App. 1991). In Mireskandari v. Edwards Wildman Palmer LLP, the court emphasized that the crucial causation inquiry is what would have happened if the defendant attorney had not been negligent, affecting potential conflicts of interest and trust beneficiary rights. Mireskandari v. Edwards Wildman Palmer LLP, 77 Cal.App.5th 247 (Cal. Ct. App. 2022).

Third, the plaintiff must demonstrate actual damages, intertwining beneficiary rights and the right to claim inheritance. In Smith v. Cimmet, the court affirmed the dismissal of a legal malpractice case for failure to plead damage, but allowed the plaintiff to amend their complaint to allege damages. Smith v. Cimmet, 199 Cal.App.4th 1381 (Cal. Ct. App. 2011). Borissoff v. Taylor Faust discussed the circumstances under which a fiduciary may bring an action against an attorney for malpractice, shedding light on conflicts of interest between trustee and beneficiary. Borissoff v. Taylor Faust, 33 Cal.4th 523 (Cal. 2004).

Additional considerations affecting the outcome of a legal malpractice case include statute of limitations, trustee and beneficiary conflicts of interest, and beneficiary rights to see the trust. Laird v. Blacker discussed the statute of limitations for legal malpractice actions, with implications for beneficiary claims. Laird v. Blacker, 2 Cal.4th 606 (Cal. 1992). Chamberlin v. Smith clarified that the statute of limitations starts from the date the cause of action accrues, potentially affecting how long a beneficiary has to claim inheritance. Chamberlin v. Smith, 72 Cal.App.3d 835 (Cal. Ct. App. 1977).

Finally, the attorney's duty to the client and potential conflicts of interest may be relevant, intertwining trustee rights and rights of a beneficiary. Travelers Ins. Co. v. National Union Fire Ins. Co. discussed the triggers for coverage under an attorney's errors and omissions policy, encompassing potential conflicts between trustee and beneficiary. Travelers Ins. Co. v. National Union Fire Ins. Co., 207 Cal.App.3d 1390 (Cal. Ct. App. 1989). Featherson v. Farwell emphasized the lawyer's primary duty to the client, shedding light on trustee rights and the power of an executor of a trust. Featherson v. Farwell, 123 Cal.App.4th 1022 (Cal. Ct. App. 2005).

In conclusion, navigating legal malpractice in probate involving trust drafting demands a comprehensive understanding of beneficiary rights, beneficiary designation, trustee rights, trust beneficiary rights, and the intricate interplay of conflicts of interest within the realm of probate law. Also please note that for beneficiary designations, it is important to retain a lawyer specialized in designating beneficiaries.

If you are in litigation relating to your role as a beneficiary or drafting attorney, it is important to understand that the outcome of each case may depend on the specific facts and circumstances of the situation. This is why it is important to consult with a trust expert like C. Tucker Cheadle who understands claims brought by beneficiaries and defenses to these claims, has experience in dealing with trust related issues, and who has served as a Trust expert witness, who can provide insight into defenses such as limiting the scope of a retainer agreement.

C. Tucker Cheadle Law works throughout California, specifically in Orange, San Diego, San Bernardino, Los Angeles, Santa Clara, Marin, Santa Maria, Redding, Stanislas, and Napa counties. Contact us today at 949.553.1066 to discuss claims against a drafting Trust Attorney and how this might relate to your particular case.

This article is designed only to provide a general background and is not legal advice. If you need legal advice please contact C. Tucker Cheadle at 949.553.1066 and after providing all the important facts and information, a legal opinion can be made. A review of any materials on this web page, any preliminary comments or an introductory meeting does not constitute legal, income tax or accounting advice upon which reliance can be placed. The attorney client relationship can only be created by a written retainer agreement following a check of potential and actual conflicts of interest with other clients.
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