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Be advised: Connecticut Supreme Court allows third-party to bring malpractice claim against attorney for failing to advise decedent client

4/8/25

By: Ryan Giggi and Edward N. Storck III

In Wisniewski v. Palermino, 351 Conn. 390 (2025), Connecticut’s Supreme Court held that plaintiff beneficiaries of a decedent’s estate could bring a legal malpractice claim against the decedent’s attorney where that attorney failed to advise the decedent to change his beneficiary designations on an investment account consistent with his intended distributions. In so doing, Wisniewski expands the scope of scenarios where a third-party can assert claims against a decedent’s attorney, as Connecticut had previously limited such claims to the lawyer’s errors in drafting or executing a will. 

In 2018, the decedent Edward Wisniewski retained the defendant attorney Anthony Palermino and his firm to prepare his estate plan and informed Palermino that he wanted to transfer his interest in his TD Ameritrade account, valued at approximately $850,000, in five equal shares to his daughter, three grandchildren, and a friend.  According to the facts set forth in the decision, Palermino advised Wisniewski that this could be accomplished through the drafting of a will, and that no other action was necessary. A will setting these terms forth was accordingly drafted and Wisniewski’s TD Ameritrade account – which named only his daughter, Joanna Cooper as beneficiary – was not updated with additional designations. Wisniewski died the next month, and his entire TD Ameritrade account was transferred to Cooper in accordance with his beneficiary designation, rather than the terms of his will. The plaintiffs, three of the additional intended beneficiaries of the TD Ameritrade account, asserted claims of legal malpractice and breach of contract against Palermino, alleging that Palermino had failed to plan Wisniewski’s estate in accordance with his wishes and that they were intended third-party beneficiaries of Wisniewski’s retainer of Palermino to prepare his estate. The trial court dismissed the malpractice claim for lack of standing, because under Connecticut law, attorneys could only be held liable to third-party beneficiaries of a will where the attorney made an error in drafting or executing the will. The breach of contract claim was later dismissed for the same reasons. 

Connecticut’s Supreme Court reversed as to the legal malpractice claim, finding that the plaintiffs did have standing to assert their legal malpractice claim against Palermo. In reaching this decision, the court held that where a client informs their attorney that they want to transfer assets from a security account according to terms set forth in a will, the attorney owes a duty to the intended beneficiaries which requires the attorney to advise the client of the required next steps, such as updating beneficiary designations for those security accounts. Here, Palermino’s failure to advise his client of the necessary next steps to effectuate his testamentary intent – namely, to update his beneficiary designations to his TD Ameritrade account – implicated a duty of care Palermino had to those intended beneficiaries.  

Though an expansion of prior Connecticut case law, which had limited third-party liability as described herein, the Connecticut Supreme Court rested its holding on dicta in those previous cases which allowed for the possibility of duties running from attorneys to third-party beneficiaries based on factors including (i) the primary purpose of the transaction was to benefit a third party, (ii) foreseeability of harm, (iii) proximity of the injury and the attorney’s conduct, (iv) public policy, and (v) the burden imposed on the legal profession. The Wisniewski Court made clear, however, that the attorney’s primary responsibility and duty ran to their client, and nothing in these narrow additional circumstances should contravene that or impose any incentives upon attorneys to favor beneficiaries of an estate over their client testator.   

This holding was not unanimous. Chief Justice Mullins, with whom Justices Alexander and D’Auria joined, countered that Connecticut’s narrow exceptions permitting third-party legal malpractice claims did not merit expansion, at least not through the facts of Wisniewski. These justices disputed that the primary purpose of this transaction was to benefit the plaintiffs, as the complaint at issue made no mention of whether the TD Ameritrade account was the only, or largest, asset to be distributed. More critically, Justices Mullins, Alexander, and D’Auria expressed concern as to the effect of Wisniewski’s holding on the attorney-client relationship, namely that the prospect of additional third-party liability would unduly intrude upon its sanctity and potentially split the attorney’s allegiances. There were no compelling public policy reasons, in their minds, to risk erosion of this relationship. 

The dissenting Justices’ concerns in Wisniewski mirror the reasons presented by other jurisdictions that found that estate planning attorneys were not liable to their client’s beneficiaries. By way of example, in Miller v. Mooney, 431 Mass. 57 (2000), Massachusetts’ Supreme Judicial Court considered the duties owed by a decedent’s estate planning attorney to her children in a case where a later executed will fundamentally changed what the children would receive upon the death of their mother. In Miller, an initial will was prepared which left the mother’s primary asset, her home, to her children equally. About a year later, a second will was prepared which gave the mother’s home to her church upon her death. The issue in this case was that the second will was prepared by another attorney at the estate attorney’s firm, a copy of the new will was not placed in the file, and the attorney who prepared the original will was not told about the change. After the mother’s death, the original will was allowed. A month after the original will was allowed, the second will was found, the decree allowing the original will was vacated, and the second will was allowed. The children brought suit against the estate attorney for legal malpractice, breach of contract, negligent misrepresentation and a claim under G.L. c. 93A.  

In affirming the granting of summary judgment in favor of the estate attorney, the Supreme Judicial Court found that because there was no attorney-client relationship even alleged between the attorney and decedent’s children, nor any contract between the decedent and attorney to provide legal services for the children’s benefit, no duty ran from the attorney to the children. Like the dissenting Justices noted in Wisniewski, the Supreme Judicial Court noted their concerns that a finding that an estate attorney owed a duty to every prospective beneficiary mentioned by their client would unduly burden the attorney-client relationship. In Miller, the court noted that “the drafting of a will necessitates against a duty arising in favor of prospective beneficiaries.”  

Despite the Connecticut Supreme Court’s careful language and clear efforts to keep this new exception narrow, its focus on the five factors noted above – purpose, foreseeability, proximity, public policy and burden on the legal profession – indicate the tripartite relationship among attorney, testator and potential beneficiaries could be fertile ground for additional exceptions to the general rule that only the client has standing to bring a malpractice claim against their attorney. It will be worth watching whether other jurisdictions follow suit and whether additional exceptions will be forthcoming in Connecticut. 

If you have any questions or comments, please reach out to Ryan Giggi, Ed Storck or your local FMG attorney!   

Information conveyed herein should not be construed as legal advice or represent any specific or binding policy or procedure of any organization. Information provided is for educational purposes only. These materials are written in a general format and not intended to be advice applicable to any specific circumstance. Legal opinions may vary when based on subtle factual distinctions. All rights reserved. No part of this presentation may be reproduced, published or posted without the written permission of Freeman Mathis & Gary, LLP.