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Barner v. Sheldon

New Jersey Superior Court, Appellate Division


June 27, 1996

JERRY A. BARNER, DONALD BARNER, JOAN SADLER, INDIVIDUALLY, AND JOAN SADLER AS EXECUTRIX OF THE ESTATE OF ELEANOR BARNER, PLAINTIFFS-APPELLANTS, CROSS-RESPONDENTS,
v.
ROBERT SHELDON, DEFENDANT-RESPONDENT, CROSS-APPELLANT, AND AURORA VEDIN PITCHELL, DEFENDANT.

On appeal from the Superior Court of New Jersey, Law Division, Union County.

Approved for Publication July 8, 1996.

Before Judges Pressler, Keefe and Wefing.

PER CURIAM

Plaintiffs Jerry A. Barner, Donald Barner and Joan Sandler, individually and as Executrix of the Estate of Eleanor Barner, instituted suit against defendant Robert Sheldon for legal malpractice on the theory that, as the attorney hired by the Executrix for their father's estate, Sheldon negligently failed to advise plaintiffs to disclaim their inheritance under the will. They claim that such course of action would have saved more than $80,000 in estate taxes. Summary judgment was entered in favor of Sheldon and plaintiff's appeal.

We hold that the Law Division did not err in finding defendant had no duty to inform the beneficiaries of the tax consequences of their failure to disclaim under these circumstances. The testator's intent, conceded by plaintiffs, was to minimize benefits to this wife by his will. Had plaintiffs, the testator's children, disclaimed, the testator's wife would have benefitted. This would have been contrary to the testator's intent. Accordingly, we affirm substantially for the reasons stated by Judge Menza whose opinion is reported at N.J. Super. (Law Div. 1995). In view of our determination, we need not decide the issue presented by defendant on his cross-appeal.

Affirmed.

19960627


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