An addendum was added to a will changing the beneficiaries at the end of the person's life when they were not of sound mind. There were things done that were not above board which our attorney found out as we went along in the suit to change back what had been done. Our attorney forced us to go to mediation and was not competent at the mediation and we lost half of the estate. We would like to sue the attorney that created the new addendum in an unlawful act to recoup the monies lost from mediation and would like the attorney that does this to get his payment as a share from the settlement if we win.
I will try to pick out what I can understand - apparently someone exercised undue influence over the testator and they amended their will. In that scenario the person responsible is the person that unduly influenced the testator which may or may not be the lawyer. So if a family member got the testator to want to make the change (the undue influence) and then the lawyer came over and the testator told the lawyer what to do - the lawyer is not liable for drafting the will as instructed by the testator. The lawyer doesn't have to investigate why the testator wants things done a certain way. In fact if the lawyer doesn't do what the testator tells the lawyer to do, and tries to change the testator''s mind, then the lawyer might them self be liable for trying to influence the testator.
You state the testator was not of sound mind. Be aware that a person only has to have a lucid moment to have the capacity to make a new will. The don't have to be competent 24/7. They don't have to have the level of competency they had when they were younger and not sick. So there can be a dispute as to whether the testator had the minimum level of competency required to make a change to their will. People can and do make changes to their testamentary plan when they are older and sick. They may not like people that they liked all their life for petty reasons. Just because their perception and personality are changing doesn't prove that they are incompetent. They just have to be able to grasp who the people in their life are and what property and debts they have. That's sort of the bare bones of being competent. Arguably abrupt changes in behavior may signal dementia. So sometimes it's hard to figure out if the person is changing their estate plan just because they are mean or because they have organic brain changes that have made them incompetent.
As for mediation. You can't be forced to do mediation. You have to agree to it. Then if in the course of mediation you can either agree or not agree with the proposed compromises. If you went to mediation and agreed to something then you are stuck with what you agreed to. (Did you really mean to say that you went to court mandated arbitration? That is something different and is not voluntary.)
What you are maybe not recognizing is that if you had brought a suit for undue influence and fought it all the way through the court system you might have lost half the estate even if you won - because both your attorney and the attorney for the estate would have been entitled to take their attorney fees out of the estate before you saw any money. So you need to factor in that you probably saved thousands of dollars that you would have lost if you had fought a contested proceeding.
You can certainly consult with an attorney that specializes in malpractice and you may or may not have a case. I still don't see how an attorney can be incompetent in mediation. Mediation is basically a settlement negotiation and you either agree or don't agree to the terms that are being proposed by the mediator to settle the matter. If you agreed how does that make your attorney incompetent?
Often in these types of contested estates the deceased person and the family have had a long history of relationship issues. Problems like alcohol or drug addiction are often factors among the family members. The people that have consulted with me are often the adult children of a very dysfunctional parent and they are dealing with psychological issues of abandonment that have been there all their lives. Being cut out of the inheritance is just the final straw in a long history of insults they have endured since childhood. I don't know if there are these issues in your case but if there are, before you run off and hire and attorney and spend a lot of money trying to right these wrongs, examine your motivations with a professional counselor. http://www.portlandlegalservices.com
I would need to know more of the facts concerning this issue. Generally, in order for you to be able to sue an attorney for malpractice, you have to have "privity" with that attorney. There is a great deal of case law that makes it very difficult for adverse parties to sue an attorney. However, if beneficiaries can prove that an attorney breached a duty of care to the estate or the decedent, it may be possible to maintain a suit against an attorney. These are difficult cases and requires an attorney who is experienced in trust and estate litigation. Additionally, you may need to have that lawyer associate a malpractice attorney evaluate whether this kind of a case has a chance of success as malpractice insurance carriers rigorously defend malpractice lawsuits. I would need far more facts to evaluate this case. Our firm is experienced in trust and estate litigation.
Your question is not clear. In mediation, parties try to reach an agreement, but unless they agree, the mediator can cannot force you to do anything. It is also unclear what your attorney forced you to go into mediation for. If the issue of the addendum was addressed in probate court and it upheld the will and addendum, it is unlikely that you have a claim against the attorney. This does not mean there won't be an attorney willing to take your case. It just means that based on the facts presented, it does not seem likely that you will prevail.
This is convoluted. I think that the biggest problems you have in proceeding are that, 1) any malpractice claims against the first attorney would inure to the benefit of (and could only be brought by) the estate. 2) You have agreed in mediation to accept a certain portion of the estate, and you will not be able to enlarge your portion by bringing another claim. 3) As part of the settlement, it is almost certain that you agreed to give up any claims that you have or might have had, as a result of the death of decedent.
As you have recognized, you would need another attorney to bring this suit, anyway. I would ask whether such a think is even possible, let alone advisable. I am guessing your answer will be no on both counts.
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