Barner v. Sheldon

In Barner v. Sheldon, 292 N.J. Super. 258, 678 A.2d 767 (Law Div.1995), aff'd o.b., 292 N.J. Super. 157, 678 A.2d 717 (App.Div.1996), the Law Division judge examined whether an attorney retained by an executor to administer an estate owes a duty to the estate beneficiaries, and delineated the respective duties of attorneys and executors under those circumstances.292 N.J. Super. at 261-66, 678 A.2d 767. The judge observed that an executor is duty-bound "to observe the directions of the testator's will," and "to administer the estate properly and in accordance with the will of the testator": The will of the testator . . . is the law to the executors . . . any deviation from such authority is illegal, and at their own risk. The executors are bound to observe this direction of the will. The wisdom of the direction is not for their consideration. Dickerson v. Camden Trust Co., 140 N.J. Eq. 34-44, 53 A.2d 225 (Ch.1947). A personal representative is under a duty to settle and distribute the estate of the decedent in accordance with the terms of any probated and effective will and applicable law, and as expeditiously and efficiently as is consistent with the best interests of the estate. He shall use the authority conferred upon him by law, the terms of the will, if any, and any offer in proceedings to which he is a party for the best interests of successors to the estate. quoting N.J.S.A. 3B:10-23. Id. at 265, 678 A.2d 767. As to the attorney's duties, the judge observed that the attorney's client is the executor of the estate, and not the estate itself: When an attorney is employed to render services in procuring admission of a will to probate or in settling the estate, he acts as attorney of the executor, and not of the estate and for his services the executor is personally responsible. It would be very dangerous to conclude that the attorney, through performance of his service to the administrator and by way of communication to estate beneficiaries, subjects himself to claims of negligence from the beneficiaries. The beneficiaries are entitled to even-handed and fair administration by the fiduciary. They are not owed a duty directly by the fiduciary's attorney. In Ogieis Ogier's Estate, 101 Cal. 381, 35 P. 900 (1894). Id. at 265-66, 678 A.2d 767. The judge ultimately concluded that an attorney retained to administer an estate may owe a duty to its beneficiaries under "egregious circumstances" such as fraud, collusion, or malice, or where a separate duty to those beneficiaries has been undertaken. Id. However, the judge cautioned that it is clear that "if a beneficiary's interest is adversarial to the interest of the estate and contrary to the will of the testator, then no such duty shall be imposed." Id. In Barner, the Court affirmed the opinion which held that a defendant-attorney who drafted decedent's will and was subsequently appointed by decedent's executrix to administer the estate had no duty to inform the estate beneficiaries, decedent's children, of the tax consequences of failing to disclaim their inheritance in favor of their mother where that disclaimer would clearly have been contrary to the testator's intent of minimizing estate benefits to his wife. 292 N.J. Super. 157, 158, 678 A.2d 717 (App.Div.1996).