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Judges disagree on when duty to exercise ordinary care extends to beneficiaries

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The Indiana Court of Appeals was divided Tuesday on whether a legal malpractice lawsuit filed by third-party beneficiaries of a will against their relative’s attorney should proceed beyond summary judgment. The case hinged on the interpretation of the “known” requirement outlined in Walker v. Lawson.

Mary Linder, through a recommendation by her alma mater Marian College, hired Berton O’Bryan to change her will. Linder told O’Bryan she had a list of items she wanted to leave to various individuals, but the will did not name those people. Linder later filled in a form that O’Bryan gave her that spelled out what her relatives would receive, but it was not dated or signed.

After her death, the probate court investigated the list’s validity, but the relatives in question settled with Linder’s estate and agreed the list was invalid. Those relatives then filed a legal malpractice lawsuit against O’Bryan. The trial court granted summary judgment in favor of O’Bryan on his argument he owed the relatives no duty because there’s no evidence that he had actual knowledge they were on the list in question or that they were the intended beneficiaries.

In  Martha Ferguson, Anthony Schmitt, Rebecca Schmitt, Mary Meadows, et al. v. Berton O'Bryan, 49A02-1211-CT-917, the judges had to decide whether O’Bryan’s duty to exercise ordinary care and skill in the preparation of the will extended to the relatives.  The judges cited Walker,  526 N.E.2d 968, 968 (Ind. 1988), in support of their rulings.

“Relatives argue for purposes of the ‘know’ or ‘known’ elements, under Walker v. Lawson, it was enough that Mr. O’Bryan knew that [Linder] wanted to name specific people.  We find this argument persuasive,” Judges Terry Crone and Chief Judge Margret Robb ruled in reversing summary judgment for O’Bryan.  “Article II of Linder’s will conclusively establishes that O’Bryan knew that she intended to benefit third parties, whom she would list on a separate form that he provided to her. To hold that O’Bryan did not owe the Relatives a duty in this situation would immunize and thus encourage even more egregious acts of malpractice, to the detriment of innocent third-party beneficiaries.”

In his dissent, Judge Ezra Friedlander pointed out that the relatives were not named in the will, but just on the list, and Linder could have added a potentially limitless number of unknown individuals to the list.

“Under these circumstances, the rationale underlying the exception for known beneficiaries disappears, and imposing a duty would expose the drafting attorney to precisely the type of unlimited liability the privity rule and the exception set forth in Walker v. Lawson were designed to prevent. Accordingly, I do not believe the Relatives fall within the category of known third parties contemplated by our Supreme Court in Walker v. Lawson,” Friedlander wrote.

“Accordingly, I would hold, and indeed we have always held, that in order to qualify as a known third party, an intended beneficiary must be known and identified at the time the will is drafted. Because the list on which the Relatives were identified was not created until after the will was drafted, they clearly do not fall within this category.”
 

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  1. A traditional parade of attorneys? Really Evansville? Y'all need to get out more. When is the traditional parade of notaries? Nurses? Sanitation workers? Pole dancers? I gotta wonder, do throngs of admiring citizens gather to laud these marching servants of the constitution? "Show us your billing records!!!" Hoping some video gets posted. Ours is not a narcissistic profession by any chance, is it? Nah .....

  2. My previous comment not an aside at court. I agree with smith. Good call. Just thought posting here a bit on the if it bleeds it leads side. Most attorneys need to think of last lines of story above.

  3. Hello everyone I'm Gina and I'm here for the exact same thing you are. I have the wonderful joy of waking up every morning to my heart being pulled out and sheer terror of what DCS is going to Throw at me and my family today.Let me start from the !bebeginning.My daughter lost all rights to her 3beautiful children due to Severe mental issues she no longer lives in our state and has cut all ties.DCS led her to belive that once she done signed over her right the babies would be with their family. We have faught screamed begged and anything else we could possibly due I hired a lawyer five grand down the drain.You know all I want is my babies home.I've done everything they have even asked me to do.Now their saying I can't see my grandchildren cause I'M on a prescription for paipain.I have a very rare blood disease it causes cellulitis a form of blood poisoning to stay dormant in my tissues and nervous system it also causes a ,blood clotting disorder.even with the two blood thinners I'm on I still Continue to develop them them also.DCS knows about my illness and still they refuse to let me see my grandchildren. I Love and miss them so much Please can anyone help Us my grandchildren and I they should be worrying about what toy there going to play with but instead there worrying about if there ever coming home again.THANK YOU DCS FOR ALL YOU'VE DONE. ( And if anyone at all has any ideals or knows who can help. Please contact (765)960~5096.only serious callers

  4. He must be a Rethuglican, for if from the other side of the aisle such acts would be merely personal and thus not something that attaches to his professional life. AND ... gotta love this ... oh, and on top of talking dirty on the phone, he also, as an aside, guess we should mention, might be important, not sure, but .... "In addition to these allegations, Keaton was accused of failing to file an appeal after he collected advance payment from a client seeking to challenge a ruling that the client repay benefits because of unreported income." rimshot

  5. I am not a fan of some of the 8.4 discipline we have seen for private conduct-- but this was so egregious and abusive and had so many points of bad conduct relates to the law and the lawyer's status as a lawyer that it is clearly a proper and just disbarment. A truly despicable account of bad acts showing unfit character to practice law. I applaud the outcome.

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