The will had a clause that
said that references to the word "children" should be construed
as meaning his three kids, Lissete, Natalie, and Gabriel.
Azcunce later had a fourth
child, Patricia. He contacted Roskin to get the will restructured for
various reasons. Roskin prepared a codicil that changed parts of the will, but left out the part about
adding Patricia as a child.
Azcunce died. Patricia
brought suit to be classified as a pretermitted child.
A pretermitted heir is someone who one would expect to be in a
will but has been completely left out. There is an assumption that the testator would have provided for the heir but for some
reason did not know of the heir's existence at the time the will was
executed.
In Patricia's case it was
because she wasn't born yet.
The guardian ad litem for Patricia's
underage siblings opposed the petition.
The Trial Court denied the
petition.
The Trial Court found that a
will takes the date of the final codicil, which in this case was executed after Patricia's birth.
Therefore she was known to Azcunce and could not be considered a pretermitted
child.
Azcune's wife brought a suit
in behalf of Patricia and the estate against Roskin for legal malpractice
for improperly excluding her from the codicil.
The Trial Court dismissed the
case for lack of privity.
The legal services were
between Roskin and Azcunce. Patricia was never a party to the contract
to provide legal services, therefore she lacked standing to sue.
The Appellate Court partially
reversed. Patricia appealed.
The Appellate Court found
that the estate could sue Roskin, but Patricia could not.
The Connecticut Supreme Court
affirmed the decision of the Appellate Court.
The Connecticut Supreme
Court found that there could be limited privity for a third-party
beneficiary when the client engaging the legal services was the benefit a
third party.
However, third party
beneficiaries are limited to those people who are mentioned as
beneficiaries in the will. Patricia's name does not appear in the will,
therefore she is not a third-party beneficiary and has no privity.
"In legal malpractice
actions are limited to those who can show that the testator's intent as
expressed in the will is frustrated
by the negligence of the testator's attorney."
Restatement of Wills § 12.1 allows for mistakes to be reversed if there is clear
and convincing evidence. Patricia could have argued that her
omission in her father's will was a mistake that should be reversed.
