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Contract For Legal Services On Behalf of Minor May Be Voidable

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MAY 6, 2002 VOLUME 9, NUMBER 45

Jonathan Adams was born out of wedlock in 1980. His paternity was established by a court order in 1995 in Florida after his parents, Mildred Adams and Cecil Hylton, Jr. engaged in highly charged litigation over Jonathan’s paternity. This litigation took place several years after the 1989 death of Cecil Hylton, Sr., Jonathan’s grandfather.

Cecil Hylton, Sr., had directed in his will that the trustees of two trusts formed to benefit his grandchildren would have sole discretion to determine who qualified as his “issue.” Anyone so identified would potentially receive distributions from the two trusts in 2014 and 2021.

Mildred Adams claimed that Jonathan’s father was unresponsive to her inquiries about other grandchildren receiving money in 1996; she also claimed that the law firm that prepared the grandfather’s will was silent about whether Jonathan would be recognized as a beneficiary. On Jonathan’s behalf his mother hired Virginia attorney Robert Zelnick in 1996 to substantiate Jonathan’s claim against his grandfather’s estate. Ms. Adams asked Mr. Zelnick to represent her son’s interests on a contingency fee basis as she was unable to pay hourly attorney’s fees. Mr. Zelnick agreed but pointed out, he later said, that the Hylton estate was very large.

In the fall of 1996, Mr. Zelnick wrote to the co-executors of the Hylton estate demanding Jonathan’s recognition as issue of Cecil Hylton, Sr. In May 1997, Mr. Zelnick filed suit on Jonathan’s behalf. In January 1998, a consent decree was entered ordering that Jonathan be declared a grandchild.

Jonathan’s father sued on his son’s behalf to have the contract between attorney Zelnick and Jonathan’s mother declared void. When Jonathan turned 18, he joined in the lawsuit. Jonathan claimed that the contract formed on his behalf to solidify the estate claim was void because it was not a contract for “necessaries”—that is food, clothing, shelter, or financial and social status. Jonathan argued in a motion for summary judgment that the suit Zelnick filed in 1997 was unnecessary because the 1995 Florida paternity order conclusively established paternity and that the trusts were not due to make distributions until 2014 and 2021. Finally, Jonathan asserted that the contingency fee agreement was unreasonable.

The trial court granted Jonathan’s motion, ruling that because Jonathan was a minor at the time, the contingency fee agreement was void and the doctrine of necessaries did not apply. Jonathan could have taken action regarding his inheritance after he turned 18, ruled the trial court. While the ruling effectively denied Mr. Zelnick’s contingency fee, it held that his legal work furthered Jonathans claim, was “extremely valuable” and should be compensated on a reasonable basis. Both sides appealed.

Last week the Virginia Supreme Court reversed the trial court while effectively reaching the same result. According to the state Supreme Court’s analysis, evidence must be taken to determine whether legal work on behalf of Jonathan was a “necessary” like food, clothing and shelter. If not, the contract for fees can be avoided altogether; if so, Mr. Zelnick is entitled to the reasonable value of his fees based on the concept of “quantum meruit.” Zelnick v. Adams, April 19, 2002.

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Robert B. Fleming


Robert Fleming is a Fellow of both the American College of Trust and Estate Counsel and the National Academy of Elder Law Attorneys. He has been certified as a Specialist in Estate and Trust Law by the State Bar of Arizona‘s Board of Legal Specialization, and he is also a Certified Elder Law Attorney by the National Elder Law Foundation. Robert has a long history of involvement in local, state and national organizations. He is most proud of his instrumental involvement in the Special Needs Alliance, the premier national organization for lawyers dealing with special needs trusts and planning.

Robert has two adult children, two young grandchildren and a wife of over fifty years. He is devoted to all of them. He is also very fond of Rosalind Franklin (his office companion corgi), and his homebound cat Muninn. He just likes people, their pets and their stories.

Elizabeth N.R. Friman


Elizabeth Noble Rollings Friman is a principal and licensed fiduciary at Fleming & Curti, PLC. Elizabeth enjoys estate planning and helping families navigate trust and probate administrations. She is passionate about the fiduciary work that she performs as a trustee, personal representative, guardian, and conservator. Elizabeth works with CPAs, financial professionals, case managers, and medical providers to tailor solutions to complex family challenges. Elizabeth is often called upon to serve as a neutral party so that families can avoid protracted legal conflict. Elizabeth relies on the expertise of her team at Fleming & Curti, and as the Firm approaches its third decade, she is proud of the culture of care and consideration that the Firm embodies. Finding workable solutions to sensitive and complex family challenges is something that Elizabeth and the Fleming & Curti team do well.

Amy F. Matheson


Amy Farrell Matheson has worked as an attorney at Fleming & Curti since 2006. A member of the Southern Arizona Estate Planning Council, she is primarily responsible for estate planning and probate matters.

Amy graduated from Wellesley College with a double major in political science and English. She is an honors graduate of Suffolk University Law School and has been admitted to practice in Arizona, Massachusetts, New York, and the District of Columbia.

Prior to joining Fleming & Curti, Amy worked for American Public Television in Boston, and with the international trade group at White & Case, LLP, in Washington, D.C.

Amy’s husband, Tom, is an astronomer at NOIRLab and the Head of Time Domain Services, whose main project is ANTARES. Sadly, this does not involve actual time travel. Amy’s twin daughters are high school students; Finn, her Irish Red and White Setter, remains a puppy at heart.

Famous people's wills

Matthew M. Mansour


Matthew is a law clerk who recently earned his law degree from the University of Arizona James E. Rogers College of Law. His undergraduate degree is in psychology from the University of California, Santa Barbara. Matthew has had a passion for advocacy in the Tucson community since his time as a law student representative in the Workers’ Rights Clinic. He also has worked in both the Pima County Attorney’s Office and the Pima County Public Defender’s Office. He enjoys playing basketball, caring for his cat, and listening to audiobooks narrated by the authors.