Cautionary Tale Highlighting the Importance of Defensive Estate Planning Practices
This article was originally posted on Steve Leimberg’s Estate Planning Email Newsletter as Archive Message #2979.
Raia v. Lowenstein Sandler, LLP – Thoughts on a Recent Malpractice Case, addressed how Raia served as a catalyst for discussions among advisors regarding a variety of considerations that planners and advisors might wish to consider when engaged in the representation of estate planning clients. Wellin v. Nixon, Peabody, LLP: Case Lessons on Defensive Practice reinforced the importance of estate planners reviewing practices, procedures and other considerations when engaged to assist clients with regard to the creation and implementation of a client’s planning desires. The issue in the Wellin decision was limited in scope to a determination of whether the statute of limitations should bar the claims alleged. But Wellin also identified issues concerning potential implications resulting from the claimed failure to properly identify, address and potentially have clients waive, inter-generational and spousal conflicts of interest that plaintiffs alleged arose in the course of estate planning. Also, questions were raised as to whether the client was informed of the potential consequences of grantor trusts, and the potential risks of the transaction. Many similar issues are raised in Scott v. Rosen, thereby meriting a further review and analysis of the issues and the potential importance of engaging in defensive estate planning practices.
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