Claim against firm over elective share must be tried

A Northern Virginia circuit judge has allowed a legal malpractice suit over a wife’s elective share claim to go to trial this fall, declining an invitation to cut the case short by finding the defendant law firm liable as a matter of law.

The case turns on the strict requirements in Virginia law for claiming an elective share by a surviving spouse and whether a lawyer can make an appearance for that person.

A judge earlier rejected the elective share motion advanced by the wife’s lawyers. The wife — now represented by new counsel — contends the failed tactic amounted to malpractice.

At stake is one half of a nearly $560,000 estate, according to a lawyer in the case.

The defendant law firm prevailed in a May 6 opinion by retired Judge Thomas D. Horne in the case of Estes v. Fallon, Myers & Marshall LLP (VLW 016-8-059).

Wife sought statutory share

Under Virginia law, a surviving spouse can claim an elective share of a decedent’s estate regardless of whether the decedent provided for the spouse in a will or whether the decedent died without a will.

The elective share is one-half of the estate if the decedent left no surviving children or their descendants. The share is one-third if there are surviving children or descendants.

After Edwin A. Estes died in 2012, leaving a will, wife Jacqueline Thorn Estes tried to claim a spousal elective share. She was represented by Jennifer R. Moore, an associate with Fallon, Myers & Marshall of Warrenton.

The executrix of the estate filed a suit for “aid and direction,” asking a judge to interpret the husband’s will. Moore — the wife’s lawyer — then asserted the elective share claim in a counterclaim.

Circuit Judge Jeffrey W. Parker ruled the attempt to claim an elective share was a “nullity.”

The purported exercise of the claim was “ineffective as a matter of law because it did not strictly comply with the operable statute,” Parker wrote in a Sept. 9, 2013, order.

The statute, Va. Code § 64.2-302, requires that an elective share be claimed “either in person before the court” or by a writing recorded in the court upon “such acknowledgement or proof” as would authorize a writing to be admitted under rules for recording land records.

As counsel for the wife, Moore said the statute did not require the spouse’s physical appearance — an attorney appearance would suffice.

The judge disagreed.

The wife never timely appeared “in person before the court,” which requires a physical appearance, Parker said. The counterclaim also was not “recorded in the clerk of the court’s office,” nor was the wife’s signature acknowledged as required for land records, Parker wrote.

Legal malpractice claimed

In her later lawsuit against her lawyers, the wife contended that failing to strictly adhere to the statutory requirements was malpractice as a matter of law. The law on claiming elective shares was “clear and settled,” she said.

“Our position is that the defendant law firm failed to comply with the statute in two respects: (1) they failed to have the plaintiff appear ‘in person’ before the court seeking the elective share within the appropriate timeframe and (2) failed to have the answer filed on behalf of plaintiff acknowledged (notarized),” Bryan G. Bosta, one of the wife’s attorneys in the malpractice action, said in an email.

Bosta, of Springfield, said the inventory of the decedent’s estate was listed at $559,908.

“We believe our client is entitled to half,” he said.

The wife asked Horne to enter summary judgment against the defendants.

The defendants — Moore and the Fallon law firm — responded that they exercised a “reasonable degree of care, skill, and dispatch” in an unsettled area of the law and should, therefore, be insulated from liability.

Allowing the wife’s claim to advance to trial, Horne said reasonable minds could differ on whether the state of the law was settled at the time of the alleged negligence.

The judge pointed to a 2006 Virginia Supreme Court ruling that an elective share claim was invalid because it was not appropriately acknowledged. However, Horne also took note of a commentary the next year from the late Prof. J. Rodney Johnson who said it had “long been debated among Virginia lawyers” whether an election can be made by an attorney on behalf of a surviving spouse.

The matter was, therefore, inappropriate for summary judgment at the time, Horne said.

A three-day trial is scheduled to start Oct. 19.

Horne “thought it appropriate to push the matter to trial where experts can weigh in,” Bosta said.

Michael T. Marr of McLean, representing the defendant law firm, declined to comment because the matter remained pending.