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The New Jersey Supreme Court issued a significant ruling involving a malpractice lawsuit brought by a disgruntled family member claiming that she should have been included in her uncle’s Last Will and Testament. The Court held that a drafting attorney owes no duty of care to a non-client, unless there is clear and convincing evidence that there is a duty to the non-client under unique circumstances as outlined in the case. Christakos v Boyadjis, No. 090214, 2026 WL 136958 (N.J. Jan. 20, 2026).

By mirror Wills executed in 2003, brothers Peter and Nicholas bequeathed their entire estates to each other.  Both were unmarried and childless.  The survivor’s estate, upon death, was to pass to James and Constantine, per stirpes, two of their eight brothers and sisters.  Prior to 2018, James and Constantine died, each leaving one living child, Helen (James’ daughter) and Alexis (Constantine’s daughter).

Sometime in 2017, Peter and Nicholas contacted Helen, an attorney, and requested she provide the name of an attorney who could review their Wills.  Helen suggested Anthony A. Boyadjis (“Anthony”), the Defendant.  After her suggestion Helen had no contact with Anthony and never knew the contents of any of the Wills of the brothers until after their deaths.

Anthony met with Peter and Nicholas on July 25, 2017.  He was asked what, under their 2003 Wills, would happen on their deaths.  Anthony advised that upon the first brother’s death that brother’s entire estate would go to the surviving brother.  Upon the survivor’s death, Anthony advised the estate of the survivor would be equally divided among their nieces and nephews.  This was an incorrect interpretation as only Helen and Alexis would have shared the second to die’s estate.

The brothers were adamant they did not want their nieces or nephews to inherit anything.  New Wills were not then prepared as the brothers were uncertain who would receive the second to die’s estate.  At a second meeting, Peter told Anthony the brothers might leave the second to die’s estate to a neighbor, a church, Alice (James’ wife) and Helen.

In January of 2018, Anthony received an urgent call from Peter advising him both brothers had been hospitalized.  Anthony was told to prepare Wills indicating the second to die’s estate was to be equally divided among their neighbor, the church and Alice. Peter signed his Will, but Anthony determined Nicholas, at that time, did not have sufficient capacity to sign.  Later, in April of 2018, Anthony met with Nicholas and concluded, at that time, he did have sufficient capacity, and Nicholas signed the new Will.

Anthony admitted, when preparing the new Wills, he failed to accurately follow the instructions of the brothers. In each new Will, upon the death of the first brother, only the decedent’s personal property passed to the survivor.

Peter died in April of 2018 and in October Nicholas died.  Both Wills were probated despite challenges by Helen. Following Peter’s death Anthony filed a lawsuit asking the Court to reform Peter’s Will to reflect Peter’s intent to convey his entire estate to Nicholas.  Following Nicholas’ death Anthony filed a second lawsuit seeking the denial of the acceptance of Nicholas’ 2018 Will and the acceptance instead of Nicholas’ 2003 Will.

In the probate proceedings it was determined that the value of the brothers’ estates exceeded $1 million.  The neighbor and the church each agreed to accept a payment of $100,000.00.  The probate Court issued a Consent Order which directed that Alice (also an heir to the 2018 Will) would receive the remainder of the estates.

In January of 2020, Helen and Alice filed a legal malpractice claim against Anthony.  They claimed, as the attorney who prepared the brothers’ 2018 Wills, Anthony owed Helen and Alice a duty of care.  They claimed he breached his duty by i) misinterpreting the 2003 Wills causing new Wills to be drafted; ii) incorrectly leaving Peter’s estate to Alice, the neighbors and the church; and iii) omitting Helen as a beneficiary of the 2018 Wills.

Anthony filed for Summary Judgement claiming he did not owe a duty of care to his non-clients, Helen and Alice. The Court rejected Anthony’s claim. On appeal the Court’s ruling was partially affirmed.  The Appellate Court concluded Anthony owed Alice, as an intended beneficiary of the Wills, a duty of care but no duty of care was owed to Helen, as the record was “bereft of evidence that . . . Helen was an intended beneficiary.”  Helen appealed.

The Supreme Court in its decision notes the existence of a duty of care is generally a question of law.  To sustain a legal malpractice, claim a plaintiff must prove “ i) the existence of an attorney-client relationship creating a duty of care by the defendant attorney; ii) the breach of that duty; and iii) proximate causation of the damages claimed by the plaintiff.”  Acknowledging these requirements, the Court noted a duty of care to non-clients arises only in limited circumstances.  Recognizing the Court had not previously articulated the test when an attorney does owe a duty of care to a non-client, the Court did so in Christakos.  It expressly adopted the provisions of Section 51 of the Restatement (Third) of the Law Governing Lawyers as the test to determine when an attorney owes a duty of care to a non-client.

Under subsection (2) of Section 51 of the Restatement a lawyer owes a duty of care “to a non-client when and to the extent that: (a) the lawyer or (with the lawyer’s acquiescence) the lawyer’s client invites the non-client to rely on the lawyer’s opinion or provision of other legal services, and the non-client so relies; and (b) the non-client is not, under-applicable tort law, too remote from the lawyer to be entitled to protection.”

Under subsection (3) of Section 51 of the Restatement a lawyer owes a duty of care “to a non-client when and to the extent that: (a) the lawyer knows that a client intends as one of the primary objectives of the representation that the lawyer’s services benefit the non-client; (b) such duty would not significantly impair the lawyer’s performance of obligations to the client; and (c) the absence of such a duty would make enforcement of those obligations to the client unlikely.”

The Court specifically cited Comment f. to Section 51 which provides “[w]hen a lawyer knows…that a client intends a lawyer’s services to benefit a third person who is not a client, allowing the non-client to recover from the lawyer for negligence in performing those services may promote the lawyer’s loyal and effective pursuit of the client’s objectives,” especially where “the client has died” and the non-client may therefore “ be the only person likely to enforce the lawyer’s duty to the client.”  Comment f. cautions that “[a] non-client’s claim under subsection (3) is recognized only when doing so will both implement the client’s intent and serve to fulfill the lawyer’s obligations to the client.”  Finally, Comment f. warns, however, that “[w]ithout adequate evidence” of the client’s intent, “upholding a third person’s claim could expose lawyers to liability for following a client’s instructions in circumstances where it would be difficult to prove what those instructions had been.  Threat of such liability would tend to discourage lawyers from following client instructions.”

The Court adopted the Comment’s conclusion that in order to sustain a claim by a non-client that an attorney failed to exercise the required duty of care, the non-client must present clear and convincing evidence the Will was not properly prepared. The Court cited two examples under Comment f., the first where there could be a duty to a non-client, and the second where no duty to a non-client exists.  In example one, the non-client alleges the attorney negligently named someone other than the non-client as beneficiary. If the non-client could prove by clear and convincing evidence that such was the case, the non-client would be able to sustain a legal malpractice claim. In example two, an heir of the decedent was successful in having the Will set aside for incompetency. The heir sued the attorney for their legal fees. The Comment noted that the attorney is not subject to liability to the heir for negligence, because recognizing a duty to heirs to use care in not assisting incompetent clients to execute Wills would impair performance of a lawyer’s duty to assist clients even when the client’s competence might later be challenged.

In adapting a bright line test for when an attorney can be sued for legal malpractice by a non-client, the Supreme Court has provided specific guidelines for avoiding a legal malpractice claim with non-clients. As a result, it is essential that estate planning lawyers understand the framework set forth in the case.