In a significant decision this summer, Schneider v. Finmann, 15 NY3d 306 (2010), the Court of Appeals loosened the privity requirements in legal malpractice actions. Specifically, in Schneider, the Court of Appeals held for the first time that a personal representative has the same ability to sue the attorney who performed estate planning services as the decedent. The Court’s rationale was that the personal representative “stands in the shoes” of the decedent and thus “has the capacity to maintain the malpractice action on the estate’s behalf.” Id. at 309.

The Court of Appeals limited this right to sue for negligent estate planning to the personal representative of the estate, holding that other interested persons are still barred from suing because of lack of privity of contract. However, limited letters pursuant to Surrogate’s Court Procedure Act §702 could be utilized to further broaden the scope of privity to beneficiaries or even just individuals interested in an estate where the appointed fiduciary will not sue. However, due to the clear admonition that any recovery sought should only be for what the decedent could have sued for, letters should not issue for the purpose of seeking recovery for anyone other than the decedent. This article explores why the Surrogate’s Courts should consider remaining vigilant in this regard and not issue limited letters to circumvent the policy of the Court of Appeals.

‘Schneider v. Finmann’

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