Court Allows Executors to Sue Attorneys Who Drafted Will

The Texas Supreme Court has ruled that executors of an estate can sue the decedent’s attorney for malpractice for negligently providing estate planning advice.

In Belt v. Openheimer, Blend, Harrison & Tate, Inc., No. 04-0681 (May 5, 2005), the executors claimed that poor estate planning cost the estate $1.5M that could have been avoided by competent estate planning. The defendants argued that they owed no duty of care to anyone outside the attorney-client relationship, relying on a prior Texas decision which did not permit trust iciaries to sue a lawyer who drafted a trust which was set aside as invalid. (Noe: Texas is in the minority in this position. “In the majority of states, a beneficiary harmed by a lawyer’s negligence in draftting a will or trust may bring a malpractice claim againt the attorney, even though the beneficiary was not the attorney’s client.”

Under these facts, however, the Texas Supreme Court found that a duty existed. Noting that Ohio, Virginia, Oregon, and Illinois permit such actions, the Court said “estate-planning malpractice claims seeking recovery for pure economic loss are limited to recovery for property damage. … Therefore, in accordance with the long-standing, common-law principle that actions for damage to property survive the death of the injured party, we hold that legal malpractice claims alleging pure economic loss survive in favor of a deceased client’s estate, because such claims are necessarily limited to recovery for property damage.”

Read the opinion here.

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