Law Tips – Estate Representation: Negligence? Course of Action? Part 2

This week in Law Tips we’re offering you the final results on Ferguson v. O’Bryan, a legal malpractice case that our faculty participant, Bob York, brings to your attention as a key case in estate practice for 2013. If you need a reminder, take a moment to read the facts in last week’s blog, below this one. Now let’s get straight to the holding and discussion:

Holding – Ferguson v. O’Bryan – 996 N.E.2d 428 (Ind. Ct. App. 2013):

1. Attorneys owe their clients a duty to exercise ordinary skill and knowledge in performing professional functions. O’Bryan was employed as Linder’s attorney and therefore owed her a duty to exercise ordinary skill and knowledge in drafting the will. To the extent that O’Bryan breached any duty owed to Linder, the claim belongs to her estate and such claim can only be brought by the personal representative acting on behalf of the estate.

2. The issue is whether O’Bryan’s duty to exercise ordinary care and skill in the preparation of the will extended to the Relatives. Pursuant to Walker v. Lawson, 526 N.E.2d 968 (Ind. 1988), “an action will lie by a beneficiary under a will against the attomey who drafted that will on the basis that the beneficiary is a known third party.”

3. Legal malpractice law does not require that the drafting attorneys have the actual names of the intended beneficiaries when they draft wills in order to be liable to persons who were intended to be beneficiaries. Indiana probate law does not require that a will must include actual names of beneficiaries in order to make valid bequests to them in the first place. For example, the probate code explicitly sanctions drafters of wills to utilize words such as “heirs,” “family,” “next of kin,” and “relatives” without having to know the specific names of the people within those classes. It thus cannot be a defense to a legal malpractice claim that a negligent attorney did not know the specific names of the intended beneficiaries of the client’s will. For purposes of the “know” or “known” elements, it was enough that Mr. O’Bryan knew that Linder wanted to name specific people.

4. We agree with the Relatives that a genuine issue of fact exists regarding whether O’Bryan actually knew the names of the intended beneficiaries on the list. O’Bryan’s self-serving claim that he never saw the list would be insufficient to resolve that issue in his favor as a matter of law. See Insuremax Ins. Co. v. Bice, 879 N.E.2d 1187, 1190 (Ind.Ct.App.2008) (“When the facts are peculiarly in the knowledge of the movant’s witnesses, there should be an opportunity to impeach them at trial, and their demeanor may be the most effective impeachment.”), trans. denied.

5. As Judge Buchanan observed in this Court’s opinion in Walker: The sole purpose of retaining the attorney [to draft a will] is to benefit known third parties. This is the objective of the transaction. The rationale voiced by the courts [in extending liability to third-party beneficiaries] is that if the beneficiaries are not permitted to recover for the loss resulting from the negligence, no one is able to do so. The estate is not harmed, except to the extent of attorney’s fees paid. Unless the beneficiary can recover against the attorney, the social policy of preventing future harm is frustrated. 514 N.E.2d 629, 633-34 (Ind.Ct. App.1987), opinion vacated by 526 N.E.2d 968 (Ind.l988)Ferguson v. O’Bryan, 996 N.E.2d 428, 434 (Ind. Ct. App. 2013).


The court properly observed that: “Summary judgment is “rarely appropriate” in negligence cases, including legal malpractice actions, because such claims “are particularly fact sensitive and are governed by a standard of the objective reasonable person–one best applied by a jury after hearing all of the evidence.” Ferguson v. O’Bryan, 996 N.E.2d 428, 432 (Ind. Ct. App. 2013).

Further note “[E]xpert testimony is usually required in a legal malpractice action to establish the standard of care by which the defendant attorney’s conduct is measured. Hacker v. Holland, 570 N.E.2d 951 (Ind.Ct.App.1991); Oxley v. Lenn, 819 N.E.2d 851, 857 (Ind.Ct.App.2004).” Dennerline v. Atterholt, 886 N.E.2d 582, 589 (Ind. Ct. App. 2008).

Finally, recall the “estate checkbook” case of In re Estate of Lee, 954 N.E.2d 1042, (Ind. Ct. App. 2011), reh’g denied, transfer denied, 967 N.E.2d 1034 (Ind. 2012), in which the Court of Appeals reversed a summary against entered in favor of an attorney based upon the affidavit of another attorney stating the attorney charged with malpractice had breached the standard of care.

Thanks again to Robert York for sharing this information on Ferguson v. O’Bryan as one of his Five Key Cases in 2013 in Estate Practice.  I hope his case review assists you in avoiding potential issues in estate matters.

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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