The New Jersey Appellate Division affirmed the lower court’s decision which granted the defendants’ Pre-Answer Motion to Dismiss the plaintiff’s amended complaint, pursuant to R. 4:6-2(e), for professional negligence, legal malpractice, breach of fiduciary duty, fraud, and other causes of action. See Dreher v. Ross et al., No. A-3805-19, 2022 N.J. Super. Unpub. LEXIS (App. Div. April 22, 2022). Specifically, the Appellate Court, affirming for substantially the same reasons stated by the lower court, adds that the plaintiff failed to specify a misrepresentation fraud claim against the defendants and failed to properly brief and assert a claim for legal malpractice from the drafting of plaintiff’s mother’s estate planning documents as well as the eventual administration of plaintiff’s mother’s estate.
In Dreher, the plaintiff filed suit against the attorney and his firm for fraud and legal malpractice in the drafting of her mother’s estate planning documents (a Will and Power of Attorney), advice provided to her brother who was listed as the plaintiff’s mother’s Executor and Attorney-in-Fact, as well as the overall administration of her mother’s estate; this litigation followed a settlement in or about March of 2018 of plaintiff’s Will Contest Litigation in the Chancery, Probate Part. The estate planning documents drafted by defendants did not specifically name the plaintiff in the Power of Attorney and plaintiff’s mother’s Will only devised twenty percent of her mother’s estate to plaintiff while plaintiff’s brother was devised the remaining eighty percent. Plaintiff’s amended complaint included an amended fraud claim as well as allegations for professional negligence, legal malpractice, and breach of fiduciary duty, which were previously dismissed with prejudice. Further, the lower court dismissed plaintiff’s amended complaint as several claims were disallowed by prior order, therefore dismissed with prejudice, but the lower court again dismissed the fraud claim without prejudice for lack of specificity.
In New Jersey, fraud—specifically fraudulent misrepresentation— allegations must be pled with specificity and particularity, whereby the plaintiff failed to establish in her amended complaint how the defendants made a material representation to the plaintiff and how the plaintiff relied upon said representations. Plaintiff only alleged that her mother’s attorney failed to disclose the attorney or his firm’s representation of plaintiff’s mother; the defendants had no duty to disclose their representation of the plaintiff’s mother. Moreover, the Appellate Division, arguing the alternative, that even if the defendants made a material misrepresentation, the plaintiff failed to specifically state the effect of the misrepresentation on her.
The Appellate Division also addressed the plaintiff’s claims for legal malpractice. Plaintiff did not maintain an attorney-client relationship with the defendants, so the Appellate Division addresses the claims as a non-client suing the defendants. The Appellate Division notes that “a duty to a non-client third party depends on balancing the attorney’s duty to represent clients vigorously, with the duty not to provide misleading information on which third parties foreseeably will rely.” The Appellate Division and the lower court found the defendants only represented the plaintiff’s mother and brother and owed no duty to the plaintiff. Moreover, the Appellate Division also found that plaintiff failed to allege that defendants rendered any negligent advice regarding the mother’s estate planning documents or the mother’s estate administration.
From a defense perspective, Dreher teaches us the importance of being aware of a client’s desires when drafting an estate plan as the language of the drafted documents will confer duties, obligations, and rights upon an Attorney-in-Fact and an Executor of a Will to avoid any material misrepresentations upon a potential non-client. Additionally, awareness of the documents will prevent any potential legal malpractice for advice given directly to the client, their family members named in the drafted documents, or the administration of an estate. Therefore, it is important to have an estate plan drafted by a professional, like those at Callahan & Fusco, LLC, familiar with New Jersey Estate Practice to avoid legal malpractice in the drafting of such important documents to protect one’s family from future frustrations and litigation.