Morrison Mahoney Associate Sarah Mondo recently obtained summary judgment on behalf of an estate planning attorney in Suffolk Superior Court.
Plaintiff’s cousin (“testator”) retained our client, a Boston estate planning attorney, to prepare testator’s estate plan, and make periodic changes to it. As the testator’s health was deteriorating, the testator sent a series of emails to the estate planning attorney suggesting changes he would like to have made to his estate plan, particularly changes to benefit the plaintiff who, at that time, was not a beneficiary under the will. The testator also emailed our client, copying the plaintiff, asking to set up a meeting to discuss making the changes. The plaintiff attended part of a meeting between the attorney and the testator where the testator raised estate planning matters. Ultimately, the attorney did not prepare updated estate planning documents before the testator died.
Direct negligence claims had previously been dismissed pursuant to a Rule 12(b)(6) motion based upon the lack of an attorney-client relationship between the attorney and plaintiff. Sarah’s motion for summary judgment argued that there was no contract obliging the attorney to change the testator’s estate plan to benefit the plaintiff, and that no viable claim remained in the absence of such contract. She argued that a contract requiring an attorney to draft a particular will naming a specific beneficiary must be in writing to remove the agreement from the Statute of Frauds, citing M.G.L. c. 190B sec. 2-514. Discovery had demonstrated that there was no such written contract. Further, to the extent that there was an oral contract between the attorney and testator to change the estate plan, Sarah argued that the plaintiff was a mere incidental beneficiary, rather than an intended beneficiary, of any such oral contract, and as such she lacked standing to enforce it.
Finally, Sarah was able to argue to the judge that she and Scott Burke had recently won a motion to dismiss in a similar case, Reilly, et al. v. Lane, Lane & Kelly, LLP, et al, which decision was reported in the October 14, 2025 edition of Lawyer’s Weekly.
Sarah also overcame plaintiff’s last-minute attempts to invoke Mass. R. Civ. P. 56(f) due to previous successes limiting the scope of plaintiff’s discovery of communications between the attorney and testator as privileged, and also plaintiff’s introducing a self-serving affidavit that contradicted her prior discovery responses, with quick thinking and mastery of the record at oral argument.
