ILNews

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

Back to TopCommentsE-mailPrint

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.”
 

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

  2. As a lawyer who grew up in Fort Wayne (but went to a real law school), it is not that hard to find a mentor in the legal community without your school's assistance. One does not need to pay tens of thousands of dollars to go to an unaccredited legal diploma mill to get a mentor. Having a mentor means precisely nothing if you cannot get a job upon graduation, and considering that the legal job market is utterly terrible, these students from Indiana Tech are going to be adrift after graduation.

  3. 700,000 to 800,000 Americans are arrested for marijuana possession each year in the US. Do we need a new justice center if we decriminalize marijuana by having the City Council enact a $100 fine for marijuana possession and have the money go towards road repair?

  4. I am sorry to hear this.

  5. I tried a case in Judge Barker's court many years ago and I recall it vividly as a highlight of my career. I don't get in federal court very often but found myself back there again last Summer. We had both aged a bit but I must say she was just as I had remembered her. Authoritative, organized and yes, human ...with a good sense of humor. I also appreciated that even though we were dealing with difficult criminal cases, she treated my clients with dignity and understanding. My clients certainly respected her. Thanks for this nice article. Congratulations to Judge Barker for reaching another milestone in a remarkable career.

ADVERTISEMENT