Gregory Riso & a.
Maureen C. Dwyer, Esq. & a
January 7, 2016.
Hillsborough-northern judicial district.
Finis E. Williams, III, of Concord, by brief and
orally, for the plaintiffs.
Preti Flaherty Beliveau & Pachios, PLLP, of Concord
( William C. Saturley and Gregory L.
Silverman on the brief, and Mr. Saturley
orally), for the defendants.
J. HICKS and BASSETT, JJ., concurred.
plaintiffs, Gregory and Sonia Riso, appeal an order of the
Superior Court ( Nicolosi, J.) granting a motion to
dismiss their negligence claim against the defendants,
Attorney Maureen C. Dwyer and Barradale, O'Connell,
Newkirk & Dwyer, P.A., on the grounds that the defendants
owed no duty of care to the plaintiffs to promptly execute
Gregory's mother's will. Because we find this case
indistinguishable from Sisson v. Jankowski, 148 N.H.
503, 809 A.2d 1265 (2002), we affirm.
most favorably to the plaintiffs, the record contains the
following facts. See England v. Brianas,
166 N.H. 369, 371, 97 A.3d 255 (2014). In February 2012,
Gregory Riso's mother, Beatrice Riso, hired Dwyer to
redraft her will. Beatrice had five children: Rocco, Ronald,
Carolyn, Kenneth, and Gregory. Her existing will granted
one-third interests in her estate to Kenneth, Ronald, and
Gregory; however, she wished to make Gregory her sole
beneficiary. Beatrice wanted to change her will because she
believed that Kenneth and Ronald had intended to distribute
Gregory's share of her estate to Carolyn and Rocco, whom
she had disinherited. Beatrice suspected that Kenneth and
Ronald had deceived her about the contents of the first will
and delayed when she asked for their assistance in revising
it. Thus, she wished to remove Kenneth and Ronald from her
will without delay. She told Dwyer that she wanted to execute
the new will by March 2, 2012.
plaintiffs and Beatrice met with Dwyer on February 28, and
Beatrice provided the necessary information to draft the
will. Beatrice, who was 90 years old, also provided a letter
from her physician stating that she was mentally competent to
make decisions. March 2 passed without Beatrice executing her
will. Soon after, Beatrice was hospitalized. Throughout this
time, the plaintiffs and Beatrice did not contact Dwyer. Nor
did Dwyer contact Beatrice. Beatrice died on March 10,
without executing her new will.
plaintiffs filed a negligence claim against Dwyer and her
firm. They alleged that the defendants breached their duty of
care by failing to execute Beatrice's will promptly. The
defendants, arguing that we rejected such a duty in
Sisson, 148 N.H. at 509, moved to dismiss the
complaint. The plaintiffs asserted that Sisson was
distinguishable because Beatrice had committed to a date
certain to execute her will and demonstrated that she would
not change her mind, while the decedent in Sisson
had not. See Sisson, 148 N.H. at 504. The
trial court agreed with the defendants
and concluded that the analysis in Sisson did not
rely upon the lack of a firm deadline to execute the will. It
determined that the reasoning in Sisson instead
relied upon the potential for conflict between the decedent
and the potential beneficiary. See id. at
507-09. Because the trial court found that the same potential
for conflict existed under the circumstances here, it granted
the defendants' motion to dismiss. The plaintiffs filed a
motion to reconsider, which the trial court denied, and this
appeal, the plaintiffs argue that we should distinguish this
case from Sisson and hold that Dwyer owed them a
duty of care because of Beatrice's desire to have her
will executed by a date certain, and because her