A Pennsylvania appeals court rules that a woman who sued her attorney for legal malpractice after he incorrectly advised her to file an election against her husband's estate may proceed even though she has settled her claim against the estate. Kilmer v. Sposito (Penn. Super. Ct., No. 1776 MDA 2015, July 1, 2016).
Janet Kilmer hired attorney James Sposito to advise her after her husband’s death. Mr. Sposito counseled Ms. Kilmer to file an election to take against her husband's will, which would entitle her to one-third of his estate. Under Pennsylvania law, if a testator marries after making a will -- as Ms. Kilmer's husband did -- the surviving spouse is entitled to the amount she would have received if the testator had died intestate, which is half the testator's estate. When Ms. Kilmer discovered that taking the election entitled her to less of the estate than she would have received under state law, she fired Mr. Sposito, hired a new attorney, and asked the court to award her one-half the estate. She agreed to settle and received 41.5 percent of her husband's estate.
Ms. Kilmer sued Mr. Sposito for legal malpractice and breach of contract, arguing that Mr. Sposito failed to advise her properly on the consequences of exercising her right of election. Mr. Sposito argued that state case law does not permit a dissatisfied client to sue her attorney for malpractice after agreeing to a settlement. The trial court dismissed Ms. Kilmer's claim, and Ms. Kilmer appealed.
The Pennsylvania Superior Court reverses, holding that Ms. Kilmer is entitled to sue for legal malpractice even though she settled her claim because she is challenging the attorney's advice about the law rather than the attorney's judgment on the settlement amount. According to the court, "barring [Ms. Kilmer] from seeking to hold [Mr. Sposito] accountable for allegedly flawed legal advice on an underlying matter essential to her inheritance as a surviving spouse would not advance the interests of finality in settlements."
For the full text of this decision, go to: https://www.pacourts.us/assets/opinions/Superior/out/J-S27032-16o%20-%201027183628233342.pdf?cb=1
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