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Keywords

plaintiffdamagesattorneynegligencemalpracticewilllegal malpracticesustained
plaintiffattorneynegligencemalpracticelegal malpracticesustained

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Estate of Gaspar v. Vogt, Brown & Merry, 670 N.W.2d 918, 2003 S.D. 126

Facts

Marcella and Ray Gaspar, both previously married with children from those marriages, married in 1965 and maintained separate finances. They intended to disinherit each other to ensure their estates would go to their respective children. Attorney Max Merry drafted wills for both, but failed to inform them that waivers of their elective shares were necessary. After Marcella's death in 1997, Ray claimed his elective share, prompting the estate to sue Merry for malpractice, claiming his negligence caused a loss of $226,449.54.

Marcella and Ray Gaspar, both previously married with children from those marriages, married in 1965 and maintained separate finances. They intended to disinherit each other to ensure their estates would go to their respective children.

Issue

Did attorney Max Merry's failure to advise Marcella and Ray Gaspar about the need to waive their elective shares constitute legal malpractice, and was this negligence the proximate cause of the loss to Marcella's estate?

Did attorney Max Merry's failure to advise Marcella and Ray Gaspar about the need to waive their elective shares constitute legal malpractice, and was this negligence the proximate cause of the loss to Marcella's estate?

Rule

In a legal malpractice case, the plaintiff must prove an attorney-client relationship, a breach of duty by the attorney, that the breach proximately caused injury to the client, and that the client sustained actual damages.

In a legal malpractice case, the plaintiff must prove an attorney-client relationship giving rise to a duty; the attorney, either by an act or a failure to act, violated or breached that duty; the attorney's breach of duty proximately caused injury to the client; and the client sustained actual injury, loss, or damage.

Analysis

The court found that Merry's failure to inform Marcella about the necessity of a waiver for her elective share was a breach of his duty, which directly led to the loss of her estate. The court ruled that the evidence supported the conclusion that had Marcella been properly advised, she would have ensured that Ray signed a waiver, thus preventing the loss. The court also noted that speculation about alternative outcomes was not sufficient to overturn the finding of negligence.

The court found that Merry's failure to inform Marcella about the necessity of a waiver for her elective share was a breach of his duty, which directly led to the loss of her estate.

Conclusion

The court affirmed the lower court's judgment, concluding that Merry's negligence was the proximate cause of the loss to Marcella's estate and that the waiver of a spouse's elective share was not void as against public policy.

The court affirmed the lower court's judgment, concluding that Merry's negligence was the proximate cause of the loss to Marcella's estate and that the waiver of a spouse's elective share was not void as against public policy.

Who won?

The estate of Marcella Gaspar prevailed in the case because the court found that attorney Merry's negligence directly caused the financial loss to the estate.

The estate of Marcella Gaspar prevailed in the case because the court found that attorney Merry's negligence directly caused the financial loss to the estate.

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