Espinosa v. Sparber, Shevin, Shapo, Rosen & Heilbronner
612 So.2d 1378 (1993)

  • An attorney, Roskin, prepared a will for Azcunce.
    • The will had a clause that said that references to the word “children” should be construed as meaning his three kids, Lissete, Natalie, and Gabriel.
  • Azcunce later had a fourth child, Patricia. He contacted Roskin to get the will restructured for various reasons. Roskin prepared a codicil that changed parts of the will, but left out the part about adding Patricia as a child.
  • Azcunce died. Patricia brought suit to be classified as a pretermitted child.
    • A pretermitted heir is someone who one would expect to be in a will but has been completely left out. There is an assumption that the testator would have provided for the heir but for some reason did not know of the heir’s existence at the time the will was executed.
      • In Patricia’s case it was because she wasn’t born yet.
  • The guardian ad litem for Patricia’s underage siblings opposed the petition.
  • The Trial Court denied the petition.
    • The Trial Court found that a will takes the date of the final codicil, which in this case was executed after Patricia’s birth. Therefore she was known to Azcunce and could not be considered a pretermitted child.
  • Azcune’s wife brought a suit in behalf of Patricia and the estate against Roskin for legal malpractice for improperly excluding her from the codicil.
  • The Trial Court dismissed the case for lack of privity.
    • The legal services were between Roskin and Azcunce. Patricia was never a party to the contract to provide legal services, therefore she lacked standing to sue.
  • The Appellate Court partially reversed. Patricia appealed.
    • The Appellate Court found that the estate could sue Roskin, but Patricia could not.
  • The Connecticut Supreme Court affirmed the decision of the Appellate Court.
    • The Connecticut Supreme Court found that there could be limited privity for a third-party beneficiary when the client engaging the legal services was the benefit a third party.
    • However, third party beneficiaries are limited to those people who are mentioned as beneficiaries in the will. Patricia’s name does not appear in the will, therefore she is not a third-party beneficiary and has no privity.
      • “In legal malpractice actions are limited to those who can show that the testator’s intent as expressed in the will is frustrated by the negligence of the testator’s attorney.”
  • Restatement of Wills § 12.1 allows for mistakes to be reversed if there is clear and convincing evidence. Patricia could have argued that her omission in her father’s will was a mistake that should be reversed.