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Attorney Not Liable for Failure to Sign

MO Court rules that an attorney cannot be found liable to beneficiaries for a failure of the Grantor to sign an amendment to his trust.

Attorney Not Liable for Failure to Sign
Vince Taormina

A recent court ruling by the Missouri Court of Appeals, Western District, held that beneficiaries to a trust did not have a malpractice claim against an attorney for their father's failure to sign amendments to his estate planning documents. The case is cited as Alberts v. Turnball Conway, PC, 641 S.W.3d 370 (Mo. App. W.D. 2022).

In June 2018, Howard Walz hired Stephen Conway to provide estate planning services to accomplish changes to his existing estate planning documents. Walz wanted his attorney to draft certain amendments to his trust to provide for specific distribution provisions to his children (the plaintiffs in the lawsuit). Shortly after Conway was hired, Walz's health deteriorated and Conway was unable to have Walz sign the amendments to his trust before Walz died in September 2018.

In January 2020, Walz's beneficiaries sued Conway for legal malpractice (which is very common in the estate planning world). They claimed that Conway was negligent for failing to promptly draft the amendments and secure the execution of the amendments to Walz's trust. The plaintiffs alleged that, as a direct result of Conway's negligence, Walz's trust was not amended and they did not receive the specific distributions intended by Walz.

The trial court dismissed the plaintiffs' petition for failure to state a claim since the plaintiffs were not Conway's clients. The plaintiffs appealed.

On appeal, the Missouri Appeals Court ruled in Conway's favor. The court reasoned that there was no privity (i.e., no attorney-client relationship) between Conway and the plaintiffs, and that allowing non-clients "to bring a legal malpractice action against an attorney could interfere with the attorney-client relationship." (citing Donahue v. Shughart, 900 S.W.2d 624 (1995)). Moreover, the court held that "[i]mposing a duty to prospective beneficiaries of undrafted, unexecuted testamentary instruments would not comport with an attorney's duty of undivided loyalty to the client and would create a potential conflict of interest to the testator and the potential beneficiaries." Alberts, 641 S.W.3d at 377.

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