Lombardo

Attorney Kurt D. Huysentruyt represented Paul J. Winters when the latter attempted to amend a trust he had established to make appellants its beneficiaries. The amendment was ruled ineffective by the probate court. Subsequently, appellants sued Huysentruyt for malpractice. They now appeal the superior court’s grant of nonsuit to Huysentruyt, contending that the superior court erred in finding that the probate court’s ruling superseded Huysentruyt’s negligence in causing their damages. Appellants further request sanctions against respondent for failing to timely file his brief on appeal. We reverse.

Statement of the Case and Facts

In May 1995, Paul Winters established a trust, naming as cotrustees himself and Regina Fellman, whom he had recently married. Winters was nearly 90 years old and Fellman was 72. The trust provided that if Fellman predeceased Winters, upon Winters’s death all the trust assets would be distributed to Fellman’s adult daughter from a prior marriage, Diane Mirviss. Winters reserved the right to terminate or amend the trust.

In late May 1996, Winters was hospitalized and diagnosed with dehydration, renal failure and Alzheimer-type dementia. Soon…

I concur in everything that my colleagues say, but I would say more. And what I would say implicates a concept apparently overlooked by the court below: the concept of the finality of judgments.

A bit of the procedural history of this case needs to be revisited: in 1996, Judge Carol Yaggy, then a probate court commissioner, entered an order in a conservatorship proceeding requested by the then conservator, the conservatee’s wife. It required, as the majority notes, that conservatee Paul J. Winters (recently hospitalized and diagnosed with, among other things, Alzheimer-type dementia) would “not have the power either to amend or revoke [his trust] without the prior approval of this Court.” This order was subsequently reapproved and reissued by Judge Yaggy when, upon the death of the wife, a professional conservator was appointed to succeed her as conservator.

As the majority opinion notes, a week or so before the conservatee died in December 1997, an amendment was prepared by respondent, signed by the conservatee and then notarized by respondent, but all without seeking court approval. About a month after Winters’s death, in January 1998, respondent sought approval of this…

Attorney Kurt D. Huysentruyt represented Paul J. Winters when the latter attempted to amend a trust he had established to make appellants its beneficiaries. The amendment was ruled ineffective by the probate court. Subsequently, appellants sued Huysentruyt for malpractice. They now appeal the superior court's grant of nonsuit to Huysentruyt, contending that the superior court erred in finding that the probate court's ruling superseded Huysentruyt's negligence in causing their damages. Appellants further request sanctions against respondent for failing to timely file his brief on appeal. We reverse.

In May 1995, Paul Winters established a trust, naming as co-trustees himself and Regina Fellman, whom he had recently married. Winters was nearly 90 years old and Fellman was 72. The trust provided that if Fellman predeceased Winters, upon Winters' death all the trust assets would be distributed to Fellman's adult daughter from a prior marriage, Diane Mirviss. Winters reserved the right to terminate or amend the trust.

In late May 1996, Winters was hospitalized and diagnosed with dehydration, renal failure and Alzheimer-type dementia. Soon thereafter, Fellman petitioned…