A New York trial court rules that the statute of limitations has run on an estate’s claim against a law firm for improperly drafting a will, holding that although the executor later retained the same firm to represent the estate, there was no continuous representation. Allmen v. Fox Rothschild LLP (N.Y. Sup. Ct., No. 101964/11, Jan. 31, 2012) (unpublished).
In 2005 Fox Rothschild LLP drafted a will for Renee Allmen, who died on June 15, 2006. Later that month, Tara Allmen retained Fox Rothschild to represent her as the executrix of Renee Allmen's estate, and both parties signed a letter of engagement. As part of its representation, Fox Rothschild prepared state and federal estate tax returns for the estate, which were subsequently audited and found deficient. Ms. Allmen filed a legal malpractice action against Fox Rothschild, alleging that the firm improperly drafted the tax provisions in Renee Allmen's will, and she also alleged that the firm improperly completed the estate tax returns, resulting in increased taxes, penalties and interest.
Fox Rothschild moved to dismiss the complaint, arguing that because it had been more than three years since it drafted the will, the claim was barred by New York's statute of limitation on legal malpractice, which in New York accrues at the time of the malpractice. Ms. Allmen claimed that the doctrine of continuous representation, which tolls the statute of limitation until an attorney's representation of the client in the matter underlying the malpractice action comes to an end, applied beyond Ms. Allmen's date of death because Fox Rothschild represented the estate.
A New York Supreme Court grants Fox Rothschild's motion to dismiss the claim relating to its drafting of the will, finding that the doctrine of continuous representation does not apply. The court explains that the "execution of the Letter of Engagement is objective proof that none of the parties had an understanding of continuous representation. In the Engagement Letter, plaintiff retained defendant to represent her as executor of the Estate. The duties outlined in the Engagement Letter are distinct from the defendant's duties in drafting the Will." The court does allow the malpractice claim relating to the tax returns to proceed.
For the full text of this decision, go to: https://attorney.elderlawanswers.com/full-text-of-opinion-in-allmen-v-fox-rothschild-llp-ny-sup-ct-no-10196411-jan-31-2012-unpublished-9721
Did you know that the ElderLawAnswers database now contains summaries of more than 1,800 fully searchable elder law decisions dating back to 1993? To search the database, click here.
Subscribe to the Knowledge Bank.
