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if' n~i IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
JULIE REZNICK, a married woman on jr-
behalf of her separate estate; and CAROL No. 74607-3- LORENZEN, and unmarried woman, DIVISION ONE Appellants, UNPUBLISHED OPINION v.
LIVENGOOD, ALSKOG, PLLC, a professional limited liability company f/k/a LIVENGOOD, FITZGERALD & ALSKOG PLLC; and HUGH W. JUDD and JANE DOEJUDD,
Respondents. FILED: December 27, 2016
Appelwick, J. — A testator's sisters assert a malpractice claim against the
testator's estate planning attorney. The sisters claim they were owed a duty as
intended beneficiaries of the attorney's services. Counsel argued that he owed no
duty to the sisters because they were not his clients, but merely intended
beneficiaries under the will. The trial court dismissed on summary judgment.
Under the applicable multifactor test, even assuming the sisters were intended
beneficiaries of the attorney's services, counsel owed them no duty. We affirm. No. 74607-3-1-2
FACTS
Hugh Judd was testator Ellen Lorenzen's longtime estate planning attorney.
Ellen1 was diagnosed with cancer in the 1990s. Judd assisted Ellen in creating a
will in 2005. That will split Ellen's residuary between two nonfamily members. That
will also gave a $10,000 gift to each of Ellen's two sisters, Carol Lorenzen and
Julie Reznick.
Ellen's condition began rapidly deteriorating in 2012. On February 16,
2012, Carol e-mailed Judd. She told him that Ellen was not well and that Ellen
wanted to speak with Judd about her will. Judd telephoned Ellen at the hospital
that night. During their conversation, Judd specifically asked if Ellen wanted to
revise the 2005 will so that her sisters would receive greater portions of her estate.
Ellen responded that she would have to think about it. They planned to meet in
person the next week to discuss.
When Judd arrived to meet with Ellen, a nurse informed him that she had
only hours left to live. Ellen's sister Julie and her longtime neighbor, Anne Nogatch,
were present at that meeting. In their presence, Judd asked Ellen to squeeze his
hand if she wanted to revoke her 2005 will so that her sisters would split her entire
estate through intestate succession. Ellen squeezed Judd's hand.
We use first names for the purposes of clarity. We intend no disrespect. No. 74607-3-1-3
Judd was unaware that, under Washington law, he could not destroy Ellen's
will outside of Ellen's presence.2 Ellen died that afternoon, and Judd had not yet
destroyed the will. Her prior will was therefore still in force.
Ellen's sisters sued Judd for legal malpractice. The trial court granted
Judd's motion for summary judgment.
DISCUSSION
Appellate courts review summary judgment orders de novo. Owen v.
Burlington N. & Santa Fe R.R... 153 Wn.2d 780, 787, 108 P.3d 1220 (2005). All
facts and reasonable inferences must be considered in the light most favorable to
the nonmoving party. Clark v. Baines, 150 Wn.2d 905, 910-11, 84 P.3d 245
(2004). Summary judgment is warranted ifthere are no genuine issues of material
fact and the moving party is entitled to judgment as a matter of law. Van Nov v.
State Farm Mut. Auto Ins. Co.. 142 Wn.2d 784, 790, 16 P.3d 574 (2001).
The elements of a typical legal malpractice claim are (1) an attorney-client
relationship, (2) the attorney's breach of the duty of care, (3) damage to the client,
and (4) proximate causation between the attorney's breach and the damage
incurred. Parks v. Fink, 173 Wn. App. 366, 376, 293 P.3d 1275 (2013). The trial
court ruled that the sisters could not maintain a claim for malpractice against Judd
because Judd owed them no duty.
In this case, the attorney-client relationship element is notably missing
because the sisters were not Judd's client. However, in Trask v. Butler. 123 Wn.2d
2Under RCW 11.12.040(1) "A will, or any part thereof, can be revoked: . . . (b) By being burnt, torn, canceled, obliterated, or destroyed ... by the testator or by another person in the presence and by the direction of the testator." No. 74607-3-1-4
835, 842-43 972 P.2d 1080 (1994), our Supreme Court carved out an exception
that allows plaintiffs to maintain legal malpractice claims even in the absence of an
attorney-client relationship. In Trask, the Court held that an attorney hired by a
personal representative does not owe estate beneficiaries a duty. jd. at 845. Trask
sets out a six factor balancing test to determine whether a nonclient can maintain
a malpractice action against an attorney, jd. at 842-43. Those factors are:
1. The extent to which the transaction was intended to benefit the plaintiff; 2. The foreseeability of harm to the plaintiff; 3. The degree of certainty that the plaintiff suffered injury; 4. The closeness of the connection between the defendant's conduct and the injury; 5. The policy of preventing future harm; and 6. The extent to which the profession would be unduly burdened by a finding of liability.
Id. The parties' arguments in this case focus on only the first, fifth, and sixth
factors.3
We begin our analysis with the fifth and sixth Trask factors, because the resolution of those factors controls the outcome here. When the fifth and sixth
factors are at issue, courts must weigh "the policy conflict between" them. See
Parks, 173 Wn. App. at 378. This court thoroughly evaluated the policy
considerations arising from factors five and six in Parks.4 Jd at 378-87. In Parks, a testator hired an attorney to fix a drafting error misidentifying a beneficiary in a
prior will that was drafted by a prior attorney. \j± at 368. But, the testator ultimately
3Even though Judd did not effectively revoke the old will, we assume for the moment that it was temporally possible to destroy it prior to Ellen's death. The trial court did not reach issues of causation and neither do we. 4 Parks is the only Washington case that the parties cite to support their arguments on factors five and six. No. 74607-3-1-5
did not execute the will prior to his death, jd. at 373. The nonclient plaintiff
received nothing under the valid earlier will, but would have received a distribution
from the estate had the client executed the subsequent will. jd. The nonclient
sued the decedent's estate planning attorney, arguing that the attorney should
have made a more timely effort to have the will executed, jd.
Whether the attorney owed a duty to the nonclient turned on the resolution
of the fifth and sixth Trask factors.5 ]± at 378. Regarding those factors, the court
noted that "the majority of courts" addressing this issue have held that "an attorney
owes no duty of care to an intended will beneficiary to have the will executed
promptly." id. The court was chiefly concerned that, if the attorney owed a duty to
the nonclient, an attorney may be inclined to have a will hastily executed to benefit
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CD ro
ro
if' n~i IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
JULIE REZNICK, a married woman on jr-
behalf of her separate estate; and CAROL No. 74607-3- LORENZEN, and unmarried woman, DIVISION ONE Appellants, UNPUBLISHED OPINION v.
LIVENGOOD, ALSKOG, PLLC, a professional limited liability company f/k/a LIVENGOOD, FITZGERALD & ALSKOG PLLC; and HUGH W. JUDD and JANE DOEJUDD,
Respondents. FILED: December 27, 2016
Appelwick, J. — A testator's sisters assert a malpractice claim against the
testator's estate planning attorney. The sisters claim they were owed a duty as
intended beneficiaries of the attorney's services. Counsel argued that he owed no
duty to the sisters because they were not his clients, but merely intended
beneficiaries under the will. The trial court dismissed on summary judgment.
Under the applicable multifactor test, even assuming the sisters were intended
beneficiaries of the attorney's services, counsel owed them no duty. We affirm. No. 74607-3-1-2
FACTS
Hugh Judd was testator Ellen Lorenzen's longtime estate planning attorney.
Ellen1 was diagnosed with cancer in the 1990s. Judd assisted Ellen in creating a
will in 2005. That will split Ellen's residuary between two nonfamily members. That
will also gave a $10,000 gift to each of Ellen's two sisters, Carol Lorenzen and
Julie Reznick.
Ellen's condition began rapidly deteriorating in 2012. On February 16,
2012, Carol e-mailed Judd. She told him that Ellen was not well and that Ellen
wanted to speak with Judd about her will. Judd telephoned Ellen at the hospital
that night. During their conversation, Judd specifically asked if Ellen wanted to
revise the 2005 will so that her sisters would receive greater portions of her estate.
Ellen responded that she would have to think about it. They planned to meet in
person the next week to discuss.
When Judd arrived to meet with Ellen, a nurse informed him that she had
only hours left to live. Ellen's sister Julie and her longtime neighbor, Anne Nogatch,
were present at that meeting. In their presence, Judd asked Ellen to squeeze his
hand if she wanted to revoke her 2005 will so that her sisters would split her entire
estate through intestate succession. Ellen squeezed Judd's hand.
We use first names for the purposes of clarity. We intend no disrespect. No. 74607-3-1-3
Judd was unaware that, under Washington law, he could not destroy Ellen's
will outside of Ellen's presence.2 Ellen died that afternoon, and Judd had not yet
destroyed the will. Her prior will was therefore still in force.
Ellen's sisters sued Judd for legal malpractice. The trial court granted
Judd's motion for summary judgment.
DISCUSSION
Appellate courts review summary judgment orders de novo. Owen v.
Burlington N. & Santa Fe R.R... 153 Wn.2d 780, 787, 108 P.3d 1220 (2005). All
facts and reasonable inferences must be considered in the light most favorable to
the nonmoving party. Clark v. Baines, 150 Wn.2d 905, 910-11, 84 P.3d 245
(2004). Summary judgment is warranted ifthere are no genuine issues of material
fact and the moving party is entitled to judgment as a matter of law. Van Nov v.
State Farm Mut. Auto Ins. Co.. 142 Wn.2d 784, 790, 16 P.3d 574 (2001).
The elements of a typical legal malpractice claim are (1) an attorney-client
relationship, (2) the attorney's breach of the duty of care, (3) damage to the client,
and (4) proximate causation between the attorney's breach and the damage
incurred. Parks v. Fink, 173 Wn. App. 366, 376, 293 P.3d 1275 (2013). The trial
court ruled that the sisters could not maintain a claim for malpractice against Judd
because Judd owed them no duty.
In this case, the attorney-client relationship element is notably missing
because the sisters were not Judd's client. However, in Trask v. Butler. 123 Wn.2d
2Under RCW 11.12.040(1) "A will, or any part thereof, can be revoked: . . . (b) By being burnt, torn, canceled, obliterated, or destroyed ... by the testator or by another person in the presence and by the direction of the testator." No. 74607-3-1-4
835, 842-43 972 P.2d 1080 (1994), our Supreme Court carved out an exception
that allows plaintiffs to maintain legal malpractice claims even in the absence of an
attorney-client relationship. In Trask, the Court held that an attorney hired by a
personal representative does not owe estate beneficiaries a duty. jd. at 845. Trask
sets out a six factor balancing test to determine whether a nonclient can maintain
a malpractice action against an attorney, jd. at 842-43. Those factors are:
1. The extent to which the transaction was intended to benefit the plaintiff; 2. The foreseeability of harm to the plaintiff; 3. The degree of certainty that the plaintiff suffered injury; 4. The closeness of the connection between the defendant's conduct and the injury; 5. The policy of preventing future harm; and 6. The extent to which the profession would be unduly burdened by a finding of liability.
Id. The parties' arguments in this case focus on only the first, fifth, and sixth
factors.3
We begin our analysis with the fifth and sixth Trask factors, because the resolution of those factors controls the outcome here. When the fifth and sixth
factors are at issue, courts must weigh "the policy conflict between" them. See
Parks, 173 Wn. App. at 378. This court thoroughly evaluated the policy
considerations arising from factors five and six in Parks.4 Jd at 378-87. In Parks, a testator hired an attorney to fix a drafting error misidentifying a beneficiary in a
prior will that was drafted by a prior attorney. \j± at 368. But, the testator ultimately
3Even though Judd did not effectively revoke the old will, we assume for the moment that it was temporally possible to destroy it prior to Ellen's death. The trial court did not reach issues of causation and neither do we. 4 Parks is the only Washington case that the parties cite to support their arguments on factors five and six. No. 74607-3-1-5
did not execute the will prior to his death, jd. at 373. The nonclient plaintiff
received nothing under the valid earlier will, but would have received a distribution
from the estate had the client executed the subsequent will. jd. The nonclient
sued the decedent's estate planning attorney, arguing that the attorney should
have made a more timely effort to have the will executed, jd.
Whether the attorney owed a duty to the nonclient turned on the resolution
of the fifth and sixth Trask factors.5 ]± at 378. Regarding those factors, the court
noted that "the majority of courts" addressing this issue have held that "an attorney
owes no duty of care to an intended will beneficiary to have the will executed
promptly." id. The court was chiefly concerned that, if the attorney owed a duty to
the nonclient, an attorney may be inclined to have a will hastily executed to benefit
the nonclient without the testator" 'sufficiently reflecting upon their estate planning
options.'" \± at 388 (emphasis omitted) (quoting Sisson v. Jankowiski, 148 N.H. 503, 509, 809 A.2d 1265 (2002)). After a thorough discussion of the law in other
jurisdictions, the court determined that this "risk of interfering with the attorney's duty of undivided loyalty to the client exceeds the risk of harm to the prospective beneficiary." 14 at 389. And, recognizing a duty could create an "irreconcilable conflict of interest" that could compromise the "undeviating fidelity of the lawyer to
his client." Id. at 388. The court therefore declined to recognize a duty under those
facts. Id. at 389.
5The first factor, whether Parks was an intended beneficiary of counsel's services, was not before the court, but was assumed for purposes of the decision. Parks, 173 Wn. App. at 378. We make the same assumption for purposes of applying the fifth and sixth Trask factors. No. 74607-3-1-6
The court also addressed a possible policy counterargument: that absent a
duty to the beneficiaries, no party could hold the attorney liable for his or her
negligence. Id. at 388. In response, the court reasoned that:
"U]ust as it would not do to award damages to a randomly selected bystander simply to bring home a message that the defendant and others like him or her should not be careless, so it would not do to make such an award, even to a rationally selected plaintiff, if in the circumstances the objective of deterrence is outweighed by countervailing policy considerations."
jdL at 388 n. 13.
The sisters argue that Parks should not control because the plaintiffs in
Parks argued that the attorney failed to act promptly, but here the attorney failed
to correctly advise. They assert that Parks' policy concerns about compromising
loyalty to a client are therefore inapplicable.
But, the negligence that the sisters allege caused them damage was in the
attorney's failure to effectuate Ellen's wishes. To effectuate Ellen's wishes Judd
needed to ensure the will was properly destroyed prior to her death. That failure
was the act of the alleged negligence. His mistaken belief that he could lawfully
destroy the will after her death was merely the reason for that failure. Had Judd
instead forgotten to tend to the lawful destruction of the will, the failure would have
been the same.
Parks involved the alleged failure to see that a new testamentary plan was
implemented by failing to see the replacement will executed, jd., at 373. This case
involves the failure to see the new testamentary plan implemented by failing to see
that the old will was timely destroyed. In both this case and Parks, the plaintiff's No. 74607-3-1-7
relationship to the attorney is the same: they are intended beneficiaries of the
testator's estate, not clients. The reasoning in Parks is equally persuasive here.
Its holding controls. Even reviewing the facts in the light most favorable to Ellen's
sisters, Judd owed them no duty.
The sisters also argue that Stanqland v. Brock, 109 Wn.2d 675, 747 P.2d
464 (1987) requires us to rule in their favor. In Stanqland, the Supreme Court
addressed a nonclient's claim for malpractice when an attorney failed to advise a
testator that a real estate transaction would affect the nonclient's estate
distribution. ]d at 677-78. The Court briefly discussed duty: "beneficiaries of [a]
will are intended to benefit from the relationship between the testator and the
attorney drafting the will, because an integral purpose of drafting the will is to
provide for the beneficiaries." Id. at 681.
But, the sisters' reliance on Stanqland is unpersuasive. First, Stanqland
predated Trask, and it therefore did not specifically analyze the framework as announced by our Supreme Court in Trask. Stanqland, 109 Wn.2d at 675; Trask, 123 Wn.2d at 835. Second, the Stanqland Court ruled that the nonclient estate
beneficiaries could not sustain a claim. Stanqland, 109 Wn.2d at 685-86. We
therefore do not see how Stanqland requires us to find that the sisters can sustain
a claim here. Third, Stanqland addressed intended beneficiary status of the
plaintiffs, but it did not meaningfully analyze the policy concerns under the fifth and sixth Trask factors that guide our analysis here. Stanqland 109 Wn.2d at 681-82. We hold that Parks controls. Trask factors five and six dictate that Judd
owed Reznick and Lorenzen no duty, even if they were intended beneficiaries of No. 74607-3-1-8
his testamentary planning services to their sister, not merely intended beneficiaries
of the estate plan.
We affirm.
WE CONCUR:
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