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Torban v. Obermayer Rebmann Maxwell & Hippel

June 27, 2007

CARL TORBAN, INDIVIDUALLY AND AS EXECUTOR OF THE ESTATE OF ALBIE J. TORBAN AND LOLA R. TORBAN, DECEASED, PLAINTIFF-APPELLANT,
v.
OBERMAYER REBMANN MAXWELL & HIPPEL AND KIMBERLY J. SCOTT, DEFENDANTS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-3406-03.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued February 6, 2007

Before Judges Skillman, Lisa and Grall.

This appeal is from the dismissal of a legal malpractice case. Plaintiff Carl Torban, individually and as executor of the estates of his parents Albie J. and Lola R. Torban, appeals from final orders granting summary judgment in favor of defendants Kimberly J. Scott and Obermayer, Rebmann, Maxwell & Hippel, L.L.P. (Obermayer), the law firm through which Scott practiced law. Because Scott and Obermayer owed no duty to provide estate-planning advice to plaintiff or Albie following Lola Torban's death, we affirm.*fn1

On December 17, 1996, Obermayer assigned Scott to revise the estate plan for its clients Albie and Lola Torban. She prepared wills and powers of attorney. By letter dated January 23, 1997, she sent these documents to the Torbans and advised them to consider establishing trusts in order to minimize taxes on the estate of the surviving spouse.

At the Torbans' request, Scott revised the wills to include the trusts. By letter dated February 13, 1997, she sent the revised documents and explained the need for the Torbans to take additional steps to reallocate their holdings. That advice was as follows:

Both of your Wills were revised in accordance with my recommendation that you create tax-saving credit shelter trusts.

[T]hese trusts will be funded with assets up to $600,000 in value, and will be held outside the estate of the surviving spouse.

In order to have assets available to fully fund the trust at the death of the first spouse to die, it is important that you have assets divided and held in your sole names.

You have indicated that most of your assets are held jointly. Any assets held jointly will pass to the surviving spouse by operation of law and will not be available to fund the credit shelter trust. Please send me a detailed list of your assets, how they are titled and approximate values so that I may assist you in dividing the assets. Remember, if you leave your assets in joint names, all of the tax planning that you are doing will be irrelevant.

On March 20, 1997, Scott supplemented that advice with recommendations for division of specific assets and an additional warning that "the planning will not be effective until you take the next 'step' and divide your jointly-held assets." Scott specifically referenced an equal division of Torbans' Vanguard mutual funds and "transfer [of] two of the Crusader certificates of deposit into Mrs. Torban's sole name . . . ."

Although the Torbans executed the wills on May 9, 1997, they did not divide their assets in accordance with Scott's recommendations.

Lola died on September 22, 1998. There is no dispute that the attorney-client relationship between Scott, Obermayer and the Torbans terminated before Lola's death when the wills were signed. That point was conceded ...


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