Legal Malpractice

Privity and Estates in Legal Malpractice

By (Andrew Lavoott Bluestone)

The question of estate legal malpractice is fraught with standing problems.  For example, if attorney drafts a will which is the product of undue influence, or demonstrably runs contra to the decedent's desires, who has the capacity to sue?

In Texas the rule seems more relaxed than in NY.  From the Jefferson Court Blog we read about a case going to the Supreme Court for the second time.

"PAUL H. SMITH, ET AL. v. THOMAS O'DONNELL, EXECUTOR OF THE ESTATE OF CORWIN DENNEY; from Bexar County; 4th district (04-04-00108-CV, 234 SW3d 135, 07-25-07) 2 petitions

OPINION BELOW: O'Donnell v. Smith, No. 04-04-00108-CV, 234 S.W.3d 135 (Tex.App.- San Antonio, July 25, 2007)(Opinion on remand by Justice Phylis J. Speedlin) (suing attorney for malpractice after client's death)

FROM THE OPINION OF THE COURT OF APPEALS:

Thomas O'Donnell, as executor of the estate of Corwin D. Denney, appeals from a summary judgment granted in favor of the law firm and attorneys who provided legal advice to Denney during his lifetime in his capacity as executor of his wife's estate.

This is the second time we have been asked to decide this case.

On the first occasion, we affirmed the judgment of the trial court. We held, based on the summary judgment evidence, that O'Donnell could not recover on behalf of Denney's estate because no cause of action for legal malpractice accrued during Denney's lifetime; therefore, O'Donnell in his representative capacity lacked privity of contract with the attorneys and the law firm he was attempting to sue. See O'Donnell v. Smith, No. 04-04-00108-CV, 2004 WL 2877330 (Tex. App.--San Antonio Dec. 15, 2004), rev'd, 197 S.W.3d 394 (Tex. 2006) (per curiam).

On review, the Supreme Court vacated our judgment and remanded the case to this court for reconsideration in light of its recent holding in Belt v. Oppenheimer, Blend, Harrison & Tate, Inc., 192 S.W.3d 780 (Tex. 2006), that a personal representative of an estate steps into the shoes of the decedent and may sue the decedent's lawyers for estate-planning legal malpractice. After considering the issues on remand in light of Belt, we affirm the granting of summary judgment in part, reverse the granting of summary judgment in part, and remand the cause to the trial court for further proceedings.") "
 

Compare this with Jacobs v. Kay, which seems to revolve around the same relationships, yet ended in defeat for plaintiff on the basis of lack of privity.

Full post as published by New York Attorney Malpractice Blog on October 03, 2008 (boomark / email).