Legal Question in Wills and Trusts in New York

Legal Malpractice/conflict of inerest

My grandfather is 87 years old. He is as healthy as can be and lives independently in his own home. His will states that the bulk of his estate, his home, will be split equally among his 4 children upon his death. His brother is an 80 year old criminal defense attorney.

My grandfather's home is worth approximately $150,000.00. Now that he is getting older and has a high chance of needing some form of care requiring him to apply for medicaid, I have been advising him to get his house out of his name and into one or more of his children's names in order to start the clock for the medicaid lookback period.

He has done this, but in the worst possible way. He learned that his grandson, my cousin, was looking to purchase a house but was only approved for a $30,000.00 loan. He offered to sell his grandson his house for that amount,1/4 it's worth. I put them in touch with an elder law/ estate attorney gto advise them on the possible negative consequences of doing this.

This attorney's advice was ignored and my uncle, the attorney, drew up a contract giving ownership of the house to my cousin and leaving my grandfather essentially homeless and ineligible for medicaid and negating the will. Is there any case for legal malpractice?


Asked on 8/16/07, 3:27 pm

2 Answers from Attorneys
Herbert Cooper Law Offices of Jameson & Cooper

Re: Legal Malpractice/conflict of inerest

Fundamentally, it will come down to whether your grandfather is competent, understood the advice provided by the elder law/estate attorney, and chose to ignore it. I assume that you are privy to all of the details, and there are no provisions which would materially change the character of the transaction, such as an obligation for the grandson to attend to the care and housing of your grandfather, undertakings by your uncle to do so in lieu of alternatives, etcetera.

I would strongly suggest that before you claim any legal malpractice, you be abundantly aware of what choices were offered to your grandfather, and whether the contract is not the product of your grandfather's wishes (ill-considered or otherwise) as opposed to any improper action on the part of your uncle. An attorney can present the options, including negative consequences, but it is up to the client to decide what course of action is most desirable for that client under those circumstances, even if others would consider the eventual choice unwise.

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Answered on 8/23/07, 12:56 pm
Walter LeVine Walter D. LeVine, Esq.

Re: Legal Malpractice/conflict of inerest

There is a good possibility of legal malpractice, since (A) the house was sold for far less that its equity, (B) I presume the Deed did not provide a life estate for your grandfather, (C) no provision was made for his children, and there may be more. Of course I did not see any documents, so some issues I raised may have different responses if I could have reviewed the documents involved. Most States have Ethics Committees (State or local) and the one where your grandfather and uncle live should be consulted. If there is a true claim, they will instruct you on how to file it.

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Answered on 8/16/07, 5:05 pm


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