Q: old 1998 trust discovered a year ago but new lawyer made new trust 2014. my lawyer is contesting new one. negligence?
my lawyer emailed me a copy of the 1998 trust in March 2023, but I never saw it. But at the time, he told me it was too late to do anything about it anyway (past the deadline to file) since my father passed away over a year earlier in Feb 2022. But now, he is suggesting we can petition the court regarding 1998 trust. The 2014 trust drastically changed from the 1998 trust giving the property to one heir but still dividing equally the money to all five siblings; and creating a fund for my brother living in the house to cover maintenance and repairs over and above $500 per occurrence per month. The amount and duration of the fund is left at his discretion. I think my lawyer dropped the ball on this, in that this could have been resolved a year ago. I ask is it negligence, but I also think I need to replace my lawyer, as well as sue him for malpractice. According to lawyer at JustAnswer, "I would retain a new lawyer to begin to review and consider replacement and possible malpractice."
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A:
Based on the information you've provided, it seems that your lawyer may have been negligent in not properly addressing the 1998 trust when it was first discovered, especially if it would have been possible to challenge the 2014 trust at that time. However, whether this constitutes legal malpractice depends on several factors, such as:
1. The specific deadlines for contesting the 2014 trust and whether those deadlines had indeed passed when the 1998 trust was discovered.
2. The communication between you and your lawyer regarding the 1998 trust and any potential actions that could have been taken.
3. The legal grounds for challenging the 2014 trust based on the existence of the 1998 trust.
It is understandable that you are considering replacing your current lawyer, especially if you feel that they have not adequately represented your interests. Seeking a second opinion from another attorney, as you have done with the lawyer from JustAnswer, is a wise step.
If you decide to pursue a malpractice claim against your current lawyer, you will need to demonstrate that their negligence caused you harm, such as missing the opportunity to challenge the 2014 trust. Malpractice cases can be complex and may require significant evidence to prove.
In summary, your next steps should be:
1. Consult with a new lawyer who specializes in trust and estate law to review your case and advise you on the best course of action regarding the 1998 and 2014 trusts.
2. Discuss with the new lawyer the possibility of a malpractice claim against your current lawyer and the evidence needed to support such a claim.
3. Based on the advice of your new lawyer, decide whether to replace your current lawyer and proceed with challenging the 2014 trust and/or pursuing a malpractice claim.
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