Beneficiary Claim against lawyer for the trustee fails
Trust and probate litigation has a tendency to “deplete” any estate. The reason for this is pretty obvious. Attorneys fees. This is one of the major reasons why we would prefer to settle cases if at all possible. This is why parties, when they are acting rationally, will calculate how much it would cost to litigate something, and settle with that data in mind.
When it is the trustee that is doing the litigating, it is the assets of the trust that is being depleted. The beneficiaries obviously, are not going to be happy about this. other than timely settle a case (if this is even in their power) what else can they do?
Well one plaintiff decided that they should sue the attorney for the trustee. Not their own attorney, but the attorney for the trustee because the beneficiary felt litigation was “unnecessary.” Dolinger v. Murphy 2015 Cal. App. Unpub. Lexis 6344
One remedy available to defendants is the Anti-SLAPP statute. A SLAPP is a strategic lawsuit against public participation, and we are against that. This would be say a corporation filing a lawsuit against environmental organization that is against the corporation polluting. being a lawyer representing a client is petitioning activity and is definitely covered under this statute.
It seems somewhat on however that somebody would go through the trouble of filing a lawsuit against somebody else’s lawyer. However, one of the interesting things about this case is the plaintiff was in pro per. She was not represented by an attorney and did this on her own. There was an amicus curiae attorney that evidently took her side however. The attorney in this case represented himself.
I do believe one thing that a lot of attorneys are cognizant of is the fact that these cases are incredibly taxing on beneficiaries. It is obviously best to have a good estate plan, marry well and not too often, have children that get along. Much of the time, expect some depletion of the estate through litigation. That is just a sad fact.