20 | November/December 2022 | BAEC Bulletin Death & Taxes
Alford v. Katz, 2022 NY Slip Op 05397 (4th Dept., 2022) This case illustrates that no good deed goes unpunished. This is an action for legal malpractice brought by Plaintiff, as executor of the estate of her late father (“Decedent”), claiming that defendant attorneys were negligent in preparing Decedent’s Will. In 2006 Decedent and his fiancé entered into a prenuptial agreement in which the fiancé waived rights in Decedent’s retirement and deferred compensation accounts in return for Decedent’s promise to leave a Will containing a $1 million QTIP trust for is soon-to-be wife (“Wife”). The marriage took place, and in 2007 Decedent executed a new Will that include a QTIP trust for the Wife. In 2015, Decedent change the beneficiary designation on his retirement accounts to designate his Wife as beneficiary of Decedent’s contributions to the retirement accounts after their marriage. In 2017 Decedent signed a new Will prepared by Defendants, bequeathing to Wife $1 million reduced by testamentary substitutes including the retirement accounts of which she was the beneficiary. The new Will did not contain a QTIP trust for the Wife. Following Decedent’s death, Wife filed a claim against the estate for a $1million QTIP trust, per the prenuptial agreement. Plaintiff-Executor rejected the claim, and Wife commenced an action against Decedent’s estate. Plaintiff then sued Defendants, alleging that Decedent changed the beneficiary designation on his retirement accounts in exchange for Wife’s waiver of her right under the prenuptial agreement to receive the QTP trust, but Defendants negligently failed to have the Wife execute a written amendment or waiver to the prenuptial agreement. Defendants moved for summary judgment dismissing the complaint as premature because the Wife’s claim against the estate was still pending. Although the two actions were not consolidated, Supreme Court issued a decision and order resolving both actions. In the Wife’s action the court granted Wife’s motion for summary judgment, and ordered Plaintiff to fund a QTIP trust with $1 million. Supreme Court granted Defendants’ motion and dismissed the Plaintiff’s complaint. Plaintiff appealed. The Fourth Department unanimously reversed, denied Defendants’ motion, and reinstated Plaintiff’s complaint.
PETER J. BREVORKA Partner, Hodgson Russ LLP
JILLIAN E. BREVORKA Partner, Hodgson Russ LLP
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