Plaintiffs say York attorney, law firm failed to secure portion of late grandfather's assets

By Nicholas Malfitano | Feb 10, 2017

HARRISBURG – A trio of plaintiffs believe a York law firm and one of its attorneys committed legal malpractice in not securing a portion of their late grandfather’s estate.

Kathryn Fortunato and Elizabeth Fortunato of Brooklyn, N.Y., and Alexander Fortunato of San Francisco, filed suit on Feb. 2 in the U.S. District Court for the Middle District of Pennsylvania, against CGA Law Firm and Kathryn Driscoll, both of York.

“Mr. Fremont was the father of three children, Kim Fortunato, Peter Fremont, and Gwenne Fremont. Gwenne Fremont predeceased Fremont. Fremont had three grandchildren, all the children of Kim Fortunato; namely, Alexander Fortunato, Elizabeth Fortunato and Kathryn Fortunato (the plaintiffs). In April 2011, Fremont transferred his financial accounts to Saly Ann Glassman at Merrill Lynch. The assets in the accounts represented the bulk of Fremont’s estate,” the suit says.

As Fremont’s relationship with Peter allegedly worsened to the point of estrangement by 2014, Glassman reportedly advised Fremont to address the change in that relationship in his estate planning.

In a later meeting in August 2014, Fremont informed Driscoll of the assets of his estate, including the assets in the Merrill Lynch accounts, which were valued at approximately $1.1 million at that time. In total, Fremont valued his entire estate at approximately $1.5 to $2 million in that meeting at CGA. Fremont considered reducing Peter's share to 25 percent, and made it clear to Driscoll that he intended that change to include the assets in the Merrill Lynch accounts.

“Regarding the distribution of the balance of the estate, after specific property bequests, the worksheet listed the beneficiaries’ shares at 50 percent to Kim, 25 percent to Peter, and 25 percent to the grandchildren. A note accompanied this section that stated, “Changed to 50 percent, 20 percent, 30 percent via phone call,” the suit says.

On Oct. 17, 2014, Fremont executed a revised Last Will and Testament that gave to Kim 100 percent of the real property. The residue section retained the percentages as follows: 50 percent to Kim, 20 percent to Peter, 30 percent to the plaintiffs – a distribution Kim said she informed Driscoll of on a number of occasions.

Fremont died on Sept. 10, 2015, but when the will was processed, Merrill Lynch said it could not make the distribution because Fremont’s accounts were designated as Transfer On Death (TOD) accounts, with beneficiaries designated as 50 percent to Kim and 50 percent to Peter. Merrill Lynch further informed Kim that the beneficiary designation of the TOD accounts superseded the designation in the Will, according to the lawsuit. Both Peter and Merrill Lynch refused to modify the arrangement surrounding the TOD accounts.

The plaintiffs say they were the intended beneficiaries of 30 percent of the bulk of Fremont’s estate – namely, the assets in the Merrill Lynch accounts – and the estate plan created by the defendants failed to provide the plaintiffs with their legacy.

“By reason of their lack of reasonable care and the failure to exercise the standard of care of the profession, Ms. Driscoll and CGA mistakenly believed that the assets in the Merrill Lynch accounts would pass to the beneficiaries through the residue provision of the Will,” the complaint reads.

“Ms. Driscoll and CGA failed to inquire as to the nature of Fremont’s Merrill Lynch accounts, failed to learn about Fremont’s specific circumstances, and, without such investigation or inquiry, nevertheless assured Fremont that his intent to leave the plaintiffs 30 percent of the assets in the Merrill Lynch accounts was met in the Will,” the complaint continues.

For counts of legal malpractice and breach of contract, the plaintiffs are seeking actual damages, interests and costs in excess of $400,000, plus other relief.

The plaintiffs are represented by Jeffrey C. McElroy and Richard P. McElroy of McElroy & Associates, in Wayne.

U.S. District Court for the Middle District of Pennsylvania case 1:17-cv-00201

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at

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