(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in
the interests of brevity, portions of any opinion may not have been summarized).
(NOTE: This Court wrote no full opinion in this case. Rather, the Court's affirmance of the judgment of the Appellate Division is based substantially on the reasons expressed in Judge Lefelt's opinion below.)
Argued October 24, 2000 -- Decided December 7, 2000
PER CURIAM
This case involves the issue of whether or not an enhanced burden of proof is required for legal malpractice
actions where the plaintiff claims that the testator's intent differed from the intent expressed on the face of the
testamentary instruments. The underlying dispute is best described in two parts.
Part I: Suit for Payment of Audrey's Bequest
Harry Pivnick executed his Last Will and Testament on August 2, 1989, and a Trust Agreement on April 1,
1992. Harry died on July 8, 1992. In his will, Harry made a number of bequests, including a $400,000 bequest to
his daughter Audrey. In addition, the Trust Agreement conveyed all the stock from Harry's business, the Acme
Holding Co., Inc., to the trust, with a life interest in himself and the remainder upon his death to his son Leonard,
co-executor of Harry's estate. Upon Harry's death, Audrey requested payment of her $400,000, which Leonard
refused, claiming that the bequest could only be honored by liquidating a portion of the trust, and that, under the
Trust Agreement, he could not authorize such a liquidation of assets. Consequently, Audrey sued Harry's estate.
Cross-motions for summary judgments were filed by Leonard and Audrey. Leonard argued for
reformation of the Trust Agreement, claiming that the Agreement, as prepared by Harry's attorney, David Beck of
Sills Cummis Zuckerman Radin Tischman Epstein & Gross, did not reflect his father's intent. He argued that Harry
intended to “insulate” Acme's assets from Audrey and did not intend for payment of her bequest out of the trust.
On September 18, 1997, Judge Clarkson S. Fisher, Jr., sitting in probate, granted Audrey summary judgment,
denying reformation of the Trust Agreement and directing payment of Audrey's $400,000 bequest. Judge Fisher
concluded that there was clear and convincing evidence that Harry intended that trust assets be used to pay for any
bequests under the will. Judge Fisher found the Agreement to be clear in its intent and unequivocally consistent
with Harry's will. Judge Fisher entered final judgement on November 13, 1997, and Leonard appealed. The
Appellate Division affirmed Judge Fisher's decision on November 19, 1998. The Supreme Court denied
certification on May 12, 1999.
Part II: Legal Malpractice Suit
Leonard filed a legal malpractice claim against Beck and his law firm (“defendants”), claiming that Beck
drafted a Trust Agreement that was contrary to Harry's intent. According to Leonard, Harry's intent was to
disinherit Audrey and leave his entire estate to Leonard. Leonard presented testimony from Angela Roper, an
attorney and business associate of Harry's and co-executor of Harry's estate, whom Leonard claimed advised Harry
to execute an inter vivos trust as a way of excluding Audrey from any post-death payments out of the estate.
Defendants moved to dismiss Leonard's complaint, arguing that Leonard did not have standing to bring the
malpractice claim, that Leonard was barred from introducing extrinsic evidence because both Harry's will and Trust
Agreement were clear on their face, and that Leonard was collaterally estopped from again raising the intent issue
because the issue was decided in the probate proceeding.
On November 20, 1998, Judge Schott dismissed Leonard's complaint, holding that Leonard was
collaterally estopped and determining that a clear and convincing burden of proof should apply where a malpractice
plaintiff claims that the intent expressed in the testamentary instrument was contrary to the testator's intent. Leonard
appealed Judge Schott's decision, arguing that the applicable burden of proof in a legal malpractice action was by a
preponderance of the evidence and that collateral estoppel did not attach where the previous action involved a more
demanding burden of proof. Defendants countered that a clear and convincing standard applied where the intent of
the testator was in dispute and the testamentary instruments were clear and unambiguous. Alternatively, defendants
argued that a legal malpractice claim in the context of a testamentary document should only be allowed where an
attorney's negligence frustrates the testator's intent as expressed in the testamentary instrument.
In a written opinion, reported at
326 N.J. Super. 474 (1999), the Appellate Division declined to adopt
defendant's position that would preclude all malpractice suits by beneficiaries unless those suits involved a lawyer's
negligence inhibiting the expressed intent of the testamentary document. The court did, however, agree that an
enhanced and “more rigorous” burden of proof should be applied in such cases: “We conclude that a clear and
convincing burden of proof for plaintiffs in malpractice actions who seek to contradict solemnly drafted and
executed testamentary documents appropriately balances all the competing interests. Our skepticism for oral proofs
in such situations is accommodated, yet, truly meritorious cases would not be precluded.” (Id., at 485) Having
concluded that the same burden of proof applied to both the probate and legal malpractice proceedings , and
applying the principle of collateral estoppel as set forth in In Re Dawson, 136, N.J. 1 (1994), the Appellate Division
concluded that Leonard was collaterally estopped from raising the intent issue, finding that it was fully litigated in
the probate proceeding.
The Court granted Leonard's petition for certification.
HELD: The decision of the Appellate Division below is affirmed substantially for the reasons set forth in Judge
Lefelt's opinion. Where a heir's malpractice action claims that the testator's intent differed from what was clearly
stated in the testamentary instrument, the heir must meet a clear and convincing burden of proof.
1. The Court adds one additional source of authoritative support, citing the Restatement (Third) of the Law
Governing Lawyers § 51(3)(a) (1998), Comment F, which states, in pertinent part, that when a lawyer is charged
with negligently drafting a document such as a will, “the third person must prove the client's intent by evidence that
would satisfy the burden of proof applicable to construction or reformation (as the case may be) of the document.”
(Pp. 2-3)
CHIEF JUSTICE PORITZ and JUSTICES STEIN, COLEMAN, LONG, VERNIERO, LaVECCHIA and
ZAZZALI join in this opinion.
SUPREME COURT OF NEW JERSEY
A-
84 September Term 1999
LEONARD PIVNICK,
Plaintiff-Appellant,
v.
DAVID BECK, ESQ., and SILLS
CUMMIS ZUCKERMAN RADIN TISCHMAN
EPSTEIN & GROSS,
Defendants-Respondents.
Argued October 24, 2000 -- Decided December 7, 2000
On certification to the Superior Court,
Appellate Division, whose opinion is
reported at
326 N.J. Super. 474 (1999).
Hilton L. Stein argued the cause for
appellant (Mr. Stein, attorney; Mr Stein and
Diane M. Acciavatti, on the brief).
James M. Hirschhorn argued the cause for
respondents (Sills Cummis Radin Tischman
Epstein & Gross, attorneys; Mr. Hirschhorn
and Thomas J. Demski, of counsel).
PER CURIAM.
We affirm the judgment below substantially for the reasons
stated in the opinion of the Appellate Division, reported at 326
N.J. Super. 474 (1999). We add one additional source of
authoritative support.
The American Law Institute has taken a position that is
consistent with the holding of the Appellate Division. Regarding
suits by nonclients, section 51 of the Restatement (Third) of the
Law Governing Lawyers provides that a lawyer owes a duty of care
“to a nonclient when . . . the lawyer knows that a client intends
as one of the primary objectives of the representation that the
lawyer's services benefit the nonclient.” Restatement (Third) of
the Law Governing Lawyers § 51(3)(a) (1998). Comment f to
section 51 explains:
When the claim is that the lawyer failed to
exercise care in preparing a document, such
as a will, for which the law imposes formal
or evidentiary requirements, the third person
must prove the client's intent by evidence
that would satisfy the burden of proof
applicable to construction or reformation (as
the case may be) of the document. See
Restatement Third, Property (Donative
Transfers) §§ 11.2 and 12.1 (Tentative Draft
No. 1, 1995) (preponderance of evidence to
resolve ambiguity in donative instruments;
clear and convincing evidence to reform such
instruments).
[Restatement (Third) of the Law Governing
Lawyers § 51 comment f (1998).]
In an earlier proceeding before the Probate court, plaintiff
undertook to have an unambiguous Will and Trust Agreement
reformed. In the present case, plaintiff alleges that the lawyer
was negligent in drafting the Will and Trust Agreement because it
does not reflect the testator-settlor's intent. Thus, the
appropriate burden of proof in this case is clear and convincing
evidence.
CHIEF JUSTICE PORITZ and JUSTICES STEIN, COLEMAN, LONG,
VERNIERO, LaVECCHIA and ZAZZALI join in this opinion.
NO. A-84 SEPTEMBER TERM 1999
ON APPEAL FROM
ON CERTIFICATION TO Appellate Division, Superior Court
LEONARD PIVNICK,
Plaintiff-Appellant,
v.
DAVID BECK, ESQ., and SILLS
CUMMIS ZUCKERMAN RADIN TISCHMAN
EPSTEIN & GROSS,
Defendants-Respondents.
DECIDED December 7, 2000
Chief Justice Poritz PRESIDING
OPINION BY PER CURIAM
CONCURRING OPINION BY
DISSENTING OPINION BY