Appeal from Superior Court, Chittenden Unit, Civil Division,
Helen M. Toor, J.
Matthew D. Anderson and Shannon E. Lamb of Pratt Vreeland
Kennelly Martin & White, Ltd., Rutland, for
B. Barnard of Dinse, Knapp & McAndrew, P.C., Burlington,
PRESENT: Reiber, C.J., Dooley, Skoglund and Robinson, JJ.
1. In this legal malpractice case, plaintiff claims that his
deceased mother's attorney failed to draft a will
reflecting her alleged intent to leave plaintiff a greater
share of real estate than that left to his siblings.
Plaintiff appeals the trial court's summary judgment
decision for defendant, arguing that defendant owed him a
duty of care as a prospective beneficiary of his mother's
estate. We disagree and therefore affirm.
2. Plaintiff's mother married plaintiff's stepfather
in 1966. Mother had three children when she married
stepfather: plaintiff and his two siblings. Stepfather had no
children, but he owned land known as the Munson Homestead,
which had been built in 1834 by the first of seven
generations of his family to live there. The Homestead
consisted of two sections: (1) a portion where the house was
situated (House Portion), and (2) a large tract of
undeveloped land (Upper Meadow). Plaintiff and his siblings
lived on the Homestead until early adulthood. Plaintiff
returned to the Homestead in 1992 to care for mother and
stepfather and to maintain the Homestead. During this time,
plaintiff claims that "[o]n more than one occasion,
" stepfather told plaintiff that he wanted plaintiff
"to inherit the entire Munson Homestead" when
stepfather and mother died. Plaintiff lived on the Homestead
until mother's death in 2012.
3. Meanwhile, stepfather died in 2000, and mother inherited
the entire Homestead. In anticipation of this inheritance,
mother had executed a will in 1999 that would leave the
entire Homestead to her three children in equal shares.
Plaintiff was "distraught" about this plan and
testified that he discussed it with mother in 2002 or 2003.
He told mother that he "had done a lot of work to the
place" and that her plan "wasn't what [he] was
told" by stepfather. Plaintiff contends that mother
responded, "I will leave you the house, the barn and the
lower meadow, and you three kids can divide up the upper
field"-in other words, she would leave the House Portion
exclusively to plaintiff, and the Upper Meadow to all three
of her children.
4. In 2006, mother hired defendant to help with the potential
sale of the Upper Meadow to a developer for over $1, 000,
000. Plaintiff claims that this sale was intended to
"ease facilitation of her primary estate planning
objective" which he says at that point was to leave the
House Portion to plaintiff and the rest of her property
divided among her three children. Although the sale to the
developer fell through, defendant did draft a codicil to her
1999 will to assist with her estate planning. This codicil
named defendant as the executor of mother's estate but
did not change the disposition of her property.* However,
according to defendant, he later met with mother in February
2010 and she "indicated" to defendant that she
"would like" plaintiff to inherit the entire House
Portion and split the Upper Meadow with his two siblings.
Indeed, after mother's death, defendant wrote a letter to
plaintiff in August 2013 about this meeting:
I met with your mother in February of 2010. She had contacted
me and indicated that she wanted to make a change to her
will. We met in her kitchen. She explained to me that she
wanted [plaintiff] to have the corner piece where the house
is, being about [two] acres. The upper meadow was to be sold
and split equally amongst her three children.
defendant described the meeting as merely "a
consult" and that no decisions were made to move forward
with the contemplated changes; indeed, he testified that
"even in the beginning, she never asked me to [revise
the will]. She never said, change my will."
5. In September 2011, defendant again met with mother
regarding her will. Defendant maintains that mother was
concerned about plaintiff's ability to pay the taxes on
the House Portion, in addition to his share of the taxes on
the Upper Meadow. It is disputed whether plaintiff was
present at this meeting. Plaintiff insists that mother
instructed defendant to draft a codicil and that defendant
responded that he would go back to his office and draft the
papers for her to sign. But there was never any further
communication between defendant and mother after that
6. In March 2012, mother fell ill and was hospitalized.
Plaintiff testified that he called defendant: "I told
him that my mother was dying; that, she wants you to come
down to the hospital and bring the will for her to
sign." Defendant did not do this. Instead, he drafted
and executed a Power of Attorney authorizing plaintiff to
handle mother's affairs. Mother died on March 31, 2012,
without executing a codicil leaving the House Portion to
plaintiff. The entire Homestead was sold, and the proceeds
were split between plaintiff and his siblings according to
the terms of mother's 1999 will.
7. Plaintiff then filed a complaint against both defendant
and his law firm alleging that defendant committed legal
malpractice and consumer fraud. Specifically, plaintiff
alleged that defendant breached a duty of care by failing to
advise mother on matters of her estate and failing to draft a
codicil reflecting her intent. The court granted a partial
motion to dismiss by defendants in June 2015, dismissing the
consumer fraud allegation. In February 2016, plaintiff filed
an amended complaint, adding another count of legal
malpractice. This amended complaint alleged that defendant
breached a duty owed to plaintiff to the extent that he could
have successfully challenged mother's ...