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Lawyer Who Drafted Contested Will Sued After Case Settles

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Laura Carnese had suffered a stroke, and (as it turned out) had only a few weeks to live. A friend and relative by marriage, Charles Carnese, happened to be a lawyer; he arranged for a former associate, attorney Anthony J. Barker, to visit with Ms. Carnese and help her prepare a new will. The will prepared by Mr. Barker was signed just weeks before Ms. Carnese’s death in November, 1999.

Ms. Carnese’s will was admitted to probate, but her heirs challenged its validity. Their case was settled, but the estate paid them a total of about $620,000; the distributions to the beneficiaries named in her will were correspondingly reduced.

Two of those beneficiaries sued Mr. Barker, alleging that the will challenge was his fault. They argued that he had made an implied promise to Ms. Carnese to prepare a will which would be invulnerable to any legal challenge, and that they were the intended beneficiaries of that promise. Among the errors they alleged he had committed were his failure to:

  • ask Ms. Carnese why she had decided to distribute her assets as she had, so that he could testify about her wishes at any later trial.
  • tell Ms. Carnese that his relationship with her relative (and beneficiary) could result in his independence being challenged.
  • urge Ms. Carnese to seek counsel from a truly independent attorney.
  • interview his client before learning about her alleged wishes from Mr. Carnese, his colleague.
  • investigate Ms. Carnese’s physical, mental and emotional status at the time she signed the will.
  • make a video or audio recording of his interview with Ms. Carnese.

The trial judge dismissed the lawsuit after finding that Mr. Barker did not owe any duty to the devisees to make the will invulnerable to challenge. The Oregon Court of Appeals disagreed, and reinstated the case. According to the appellate court, Mr. Barker did owe the will beneficiaries a duty to follow any promise he had made for their benefit, and the preparation of estate planning documents necessarily implies a promise to “act in a professionally competent manner.”

The Oregon Supreme Court, however, disagreed with the state’s intermediate appellate court. The high court ruled that there was no evidence that Mr. Barker made specific promises to Ms. Carnese about preparation of her will. According to the Justices, the law should not impute an agreement to prepare a will that is “invulnerable to a will contest so as to achieve [Ms. Carnese’s] plan to maximize gifts to residuary beneficiaries.” The trial judge’s dismissal of the lawsuit against Mr. Barker was affirmed. Caba v. Barker, October 19, 2006.

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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.