Estate Representation: Negligence? Course of Action?

Perhaps you’re interested in legal negligence issues. Or, perhaps you should be.  I have important information on legal malpractice action provided by Robert York during his recent CLE presentation. Included in Bob’s list of the Five Key Cases in Estate Practice in 2013 is Ferguson v. O’Bryan. He shares the details of this interesting case with Law Tips readers.

Ferguson v. O’Bryan – 996 N.E.2d 428 (Ind. Ct. App. 2013)
Here, Relatives of testator brought legal malpractice action against an attorney who drafted will, asserting that due to attorney’s negligence, bequests testator intended to make to relatives failed.

Facts and Procedure:
In 2005, the seventy-eight-year-old Linder wished to change her will. Linder contacted Marian College, her alma mater, for a referral to an attorney. The school referred her to O’Bryan, who is also a Marian graduate. Linder hired O’Bryan to draft a new will. Before O’Bryan drafted the will, Linder informed him that she had a list of items that she wanted to leave to various individuals. O’Bryan informed Linder that he would bring her a separate form that she could use to make these and other specific bequests and told her that she would need to fill out the form and sign and date it. In accordance with Linder’s wishes, the will contained a residuary clause in favor of Marian College. The will also referenced the list that Linder had discussed with O’Bryan. Specifically, Article II of the will provided as follows:

I hereby give and bequeath each described item of cash or personalty set out on a certain list which I will from time to time update and keep with this Will. Said list will set out the name of the person and the item or items I bequeath to each such person.

I direct that my Personal Representative honor the list the same as if it had been set out herein. Should any questions arise regarding said list, the decision of my personal representative shall be conclusive. Any modifications I may choose to make to said list shall each be dated and initialed.

The form O’Bryan provided to Linder for the purpose of making the list referred to in her will was titled “Specific Bequests of Cash and/or Personalty” and included the following statement:

This list is the one I, Mary Helen Linder, referred to in my Last Will & Testament dated February 19, 2005. I direct that my Personal Representative honor this list and see to it that each such listed item be given to the named donee. I intend to make changes to this list from time to time by additions or deletions by lining through any deletions and initialing and dating all such changes. I will try to keep this list with or near a copy of the above-mentioned Will.

The form did not contain designated spots for the bequests to be signed, dated, or witnessed.

Linder filled in the form indicating that she wished to make a number of cash bequests, including bequests to the Relatives ranging from $5000 to $50,000 apiece. Linder did not sign and date the list as instructed, nor was the list witnessed. Following the execution of the will, O’Bryan stayed in regular contact with Linder, but he denies ever seeing the filled-in form or even knowing whether Linder ever filled out the form at all. Two years after drafting the original Will, at Linder’s request, O’Bryan drafted a codicil and assisted Linder in its execution. Linder passed away just twelve days later.

The named personal representative notified O’Bryan, who filed the will and codicil with the probate court, but not the list. Sometime later, O’Bryan informed the probate court of the list’s existence. The probate court appointed special counsel to investigate the list’s validity and held a hearing on the matter. Before the probate court issued a ruling, it approved a settlement agreement between Linder’s estate and the Relatives providing that the list was invalid and that $25,000 would be divided among the Relatives.

In April 2010, the Relatives filed a legal malpractice action against O’Bryan. In August 2011, O’Bryan filed a motion for summary judgment, asserting that he did not owe the Relatives a duty because “there is absolutely no evidence that [he] had actual knowledge that they were on the List or were intended beneficiaries of Ms. Linder or her Estate.” After a hearing, the trial court denied the motion in March 2012. O’Bryan filed a motion to correct error, and, after a hearing, the trial court granted the motion and entered summary judgment for O’Bryan in June

2012. The Relatives then filed a motion to correct error, and the trial court held yet another hearing. In October 2012, the trial court entered an order denying the Relatives’ motion to correct error and clarifying the basis for its entry of summary judgment in O’Bryan’s favor. In a 2-1 decision, the Court of Appeals reversed the granting of summary judgment in favor of O’Bryan.

What do you believe are the responsibilities of the attorney to his client in this case? Did his duty extend to the Relatives?  Do you agree with the courts’ rulings on summary judgment?  Deliberate on your own until next week when we’ll continue this case review by Bob York with the holding by the court and a discussion of the results.  Join us here at Law Tips to see where the court stands. 

If you’re interested in an update from experts in estate and related fields the ICLEF On Demand Seminar of “120 Hot Tips in Probate, Guardianships, Trusts and Tax” is available by clicking here.  This CLE features succinct and relevant training from a panel of 25 experts in their fields, including our Law Tips contributor, Bob York


About our Law Tips faculty participants:
Robert W. York, Robert W. York & Associates, has practiced law in Indianapolis since 1973, beginning with his first year of practice as a Marion County Deputy Prosecuting Attorney.  He is a seasoned trial lawyer who focuses his practice on litigation involving estates/trusts/probate; business; contracts; insurance; and injury, in all Indiana state and federal courts. Mr. York served as an Indiana Administrative Law Judge from 1974-83; and also as a frequent Special Judge in major felony trials from 1992-2011.  Bob has also earned his USA Master Hockey Coach Certification.

About our Law Tips blogger:
Nancy Hurley has long-standing connections with Indiana lawyers. She was formerly a member of the ISBA and IBF staffs for over 30 years. Nancy’s latest lifestyle venture is with ICLEF. We are utilizing her exceptional writing and interviewing skills while exploring how her Indiana-lawyer background fits with ICLEF’s needs. When she isn’t ferreting out new topics for Law Tips, her work can be found in our Speaker Spotlight blogs, postings on the ICLEF Facebook and Twitter pages, and other places her legal experience lends itself.

Thank you for reading Law Tips. You may subscribe to this weekly blog through the RSS link at the top of this page.  Also, you are encouraged to comment below or email Nancy. She welcomes your input as she continues to sift through the treasure trove of knowledge of our CLE faculty to share with you.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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