Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Click here for the full text of this decision FACTS:Kristin Terk Belt and Kimberly Terk Murphy (the Terks) � the joint, independent executors of their father David Terk’s estate � sued several attorneys and their law firm, Oppenheimer, Blend, Harrison & Tate Inc. (collectively, the attorneys) for legal malpractice. The attorneys moved for summary judgment on the ground that estate planners owe no duty to the personal representatives of a deceased client’s estate. The trial court granted the motion, and the court of appeals affirmed the judgment. HOLDING:Reversed and remanded. The Terks � in their capacity as personal representatives of their father’s estate � may maintain an estate-planning malpractice claim against the attorneys. While an attorney always owes a duty of care to a client, no such duty is owed to nonclient beneficiaries, even if they are damaged by the attorney’s malpractice. Barcelo v. Elliott, 923 S.W.2d 575 (Tex. 1996). The question in this case, however, is whether the Barcelo rule bars suits brought on behalf of the decedent client by his estate’s personal representatives. The court disapproves of the holding in Estate of Arlitt v. Paterson, 995 S.W.2d 713 (Tex. App. – San Antonio 1999, pet. denied), that no legal malpractice claim accrues before death, when an estate-planning attorney’s negligent drafting results in increased estate tax consequences. Even though an estate may suffer significant damages after a client’s death, this does not preclude survival of an estate-planning malpractice claim. While the primary damages at issue here � increased tax liability � did not occur until after the decedent’s death, the alleged negligence occurred while the decedent was alive. If the decedent had discovered this injury prior to his death, he could have brought suit against his estate planners to recover the fees paid to them. In addition, the decedent could have recovered the costs incurred in restructuring his estate to minimize tax liability. Therefore, if the alleged injury occurs during the client’s lifetime, a claim for estate-planning malpractice survives the client’s death. Because legal malpractice claims survive in favor of the decedent’s estate, the estate has a justiciable interest in the controversy sufficient to confer standing. In this case, it is undisputed that the Terks are the independent executors of their father’s estate. Thus, they may bring a claim on behalf of the estate in their capacity as personal representatives. In Barcelo, the court held that an attorney’s ability to represent a client zealously would be compromised if the attorney knew that, after the client’s death, he could be second-guessed by the client’s disappointed heirs. While this concern applies when disappointed heirs seek to dispute the size of their bequest or their omission from an estate plan, it does not apply when an estate’s personal representative seeks to recover damages incurred by the estate itself. While the interests of the decedent and a potential beneficiary may conflict, a decedent’s interests should mirror those of his estate. Thus, the conflicts of concern in Barcelo are not present in malpractice suits brought on behalf of the estate. “We note, however, that beneficiaries often act as the estate’s personal representative, and our holding today arguably presents an opportunity for some disappointed beneficiaries to recast a malpractice claim for their own”lost’ inheritance, which would be barred by Barcelo, as a claim brought on behalf of the estate. The temptation to bring such claims will likely be tempered, however, by the fact that a personal representative who mismanages the performance of his or her duties may be removed from the position.” OPINION:Jefferson, CJ, presented the court’s opinion. Green, J, did not participate.

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 1 article* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.