A New Jersey appeals court rules that a client cannot prevail on a legal malpractice claim against an attorney for pursuing the wrong theory in a will contest case because the client prevailed and there was no evidence the other theory was better. Begelman, Orlow & Melletz v. Ehrlich (N.J. Sup. Ct., App. Div., No. A-2233-16T4, May 4, 2018).
Jonathon Ehrlich's uncle passed away, and Mr. Ehrlich found an unsigned will among his uncle's belongings that included a notation that it was a copy of a signed will. The signed will was not found. Mr. Ehrlich hired attorney Paul Melletz to help him probate the will. The court admitted the will to probate over the objections of Mr. Ehrlich's siblings. On appeal, one judge dissented from the majority opinion, arguing that more evidence was needed to show the original will was lost. Because one judge dissented, Mr. Ehrlich's siblings had the right to appeal, so Mr. Ehrlich entered into a settlement agreement with them to avoid the appeal.
Mr. Ehrlich sued Mr. Melletz for legal malpractice, claiming the attorney should have argued the will was a lost will instead of arguing the unsigned will accurately reflected the testator's wishes. Mr. Ehrlich claimed that if Mr. Melletz pursued the lost will theory, the judges' decision would have been unanimous. The trial court granted summary judgment to the attorney, and Mr. Ehrlich appealed.
The New Jersey Superior Court, Appellate Division, affirms, holding that there is no evidence that pursuing one legal theory would have been better than pursuing another legal theory, so the attorney did not commit legal malpractice. According to the court, "the lost will theory requires the proponent of the will to overcome a rebuttable presumption that the testator revoked his will," and there was no evidence that Mr. Ehrlich could overcome this presumption.
For the full text of this decision, go to: https://www.njcourts.gov/attorneys/assets/opinions/appellate/unpublished/a2233-16.pdf?cacheID=OIWgpad
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