Kirgan v. Parks

BLOOM, Judge. The principal question raised on this appeal is whether a testamentary beneficiary can maintain a cause of action, either ex contractu or ex delicto, against the testator’s attorney for alleged negligence in drafting the will in such manner that the beneficiary did not receive what she believes the testator intended to leave her. Our answer to that question is “a definite maybe.” 1 To that equivocation we add, “But, in any event, not if the asserted testamentary intention is not apparent on the face of the will.” Other questions presented by this appeal involve somewhat more prosaic subjects- — pleadings and limitations. ⁴ -BACKGROUND- Appellant, Mary Kirgan, alleges that when her friend, Clarence M. Plitt, an elderly, wealthy widower, expressed a desire to change his Last Will and Testament in her favor, she referred him to her attorney, Z. Townsend Parks Jr. After Mr. Plitt’s death, Mrs. Kirgan learned, to her dismay, that in the will prepared for Mr. Plitt by Mr. Parks the bequest to her of all of the testator’s “tangible personal property” actually left her only about $7000 worth of furniture and other chattels. The bulk of the testator’s estate, consisting of stocks, bonds and bank accounts as well as real estate, having a total value allegedly in excess of $5,000,000, was left to a charitable trust, of which appellant and First National Bank of Maryland were designated co-trustees.

Mrs. Kirgan and the bank were also named co-personal representatives; Mr. Parks was designated successor to Mrs. Kirgan as trustee and personal representative. Mrs. Kirgan first took the position that the “tangible personal property” left to her in the will included all of Mr. Plitt’s stocks, bonds and cash, constituting the major assets of the estate. This position was disputed by First National Bank, the co-trustee. Mrs. Kirgan then lowered her sights to claim only the cash and the testator’s bearer bonds and bearer treasury notes, but the bank disputed her claim to those holdings and instituted a declaratory judgment suit against Mrs. Kirgan.

That action resulted in a determination that “tangible personal property,” as those words were used in Mr. Plitt’s will, did not include cash, bonds or treasury notes — a determination that added great significance to the suit Mrs. Kirgan had already filed against the appellees, Mr. Parks and the other members of his law firm, Wright and Parks. We turn now to the history of this litigation. The original declaration, in the Superior Court of Baltimore City [now part of the Circuit Court for Baltimore City], contained two counts preceded by several pages of alleged ⁵ “facts common to all counts.” We will have more to say about the form and substance of that declaration later. For the moment it is sufficient to note that the first count apparently attempted to state a cause of action for negligence in the preparation of Mr. Plitt’s will and in giving Mrs. Kirgan poor legal advice as to rights she might have acquired by marrying Plitt whereas the second count, after incorporating all of the preceding allegations, accused the appellees of intentionally breaching their duties to Mary Kirgan in order to enrich themselves.

The appellees, defendants, filed a motion raising the preliminary objection, under Md.Rule 323 a 5, that as testamentary beneficiary Mrs. Kirgan lacked legal capacity and standing to sue the testator’s attorney for alleged negligence in drafting the will because there was no privity between them. The court granted that motion and entered judgment for the defendants, and Mrs. Kirgan appealed. In an unreported per curiam opinion, Kirgan v. Parks, No. 1415, September Term, 1979, filed October 7, 1980, we reversed the lower court, pointing out that the challenge to Mrs. Kirgan’s status related to her standing to maintain the action, which might be reached by demurrer, rather than to her legal capacity to sue, which can be challenged by a motion raising preliminary objection. The appellees then demurred to the declaration, whereupon Mrs. Kirgan filed an amended declaration containing eight counts in addition to the multiple page introductory statement of “facts common to all counts.” Count I, sounding in tort, alleged negligence in the preparation of Mr. Plitt’s will, as a result of which the will failed to make the ample and adequate provision for Mrs. Kirgan that the testator intended to make.

Count II asserted basically the same cause of action but sounded in contract, on the theory that Mrs. Kirgan was a third party beneficiary of the contract of employment between testator and attorney. Count III charged the appellees with professional malpractice in giving Mrs. Kirgan improper and unsound legal advice with respect to “what rights she might have under ⁶ Maryland Law as the wife of Clarence M. Plitt to share in his estate, said advice being requested in contemplation of marriage to Clarence M. Plitt.” She alleged that instead of informing her of the statutory right of a surviving spouse to one-third of the estate of the deceased spouse appellee Parks advised her that no special rights vested in a surviving spouse, wherefore she “forgoed [sic] her opportunity to marry” Plitt. Count IV alleged professional malpractice in wrongly advising Mrs. Kirgan that any claim against Plitt’s estate for caring for the deceased for the last two years of his life would be for a negligible sum of money and in failing to advise her of the applicable period of limitations for making such claim. Count V alleged professional malpractice in failing to advise Mrs. Kirgan that she had a meritorious claim against the estate for breach of the decedent’s promise to provide adequately for her in his will.

Count VI was an alternative to Counts I and II; it asserted that if it be found that the provision for Mrs. Kirgan in Plitt’s will was in accordance with his intention Parks, being her attorney, had a conflict of interest and should have advised her of Plitt’s intent so she could have tried to prevail upon Plitt to honor his commitments to her. Count VII accused appellees of wrongfully failing to advise Mrs. Kirgan that they had created a conflict of interest by designating themselves successor trustees of the perpetual charitable trust created by Plitt’s will. Count VIII accused appellees of intentionally breaching their duty to her in order to feather their own nests as potential successor trustees. The amended declaration was followed by a plethora of pleadings — demurrers, general issue pleas, pleas of limitations, motion for partial summary judgment, motions for summary judgment, affidavits, voluminous memoranda of legal arguments in support of and in opposition to the demurrers and motions, interrogatories and answers thereto and exceptions to answers thereto, demands for admission of facts and responses thereto.

Ultimately, each count was disposed of favorably to the appellees: demurrers to ⁷ the first, second and eighth counts were sustained without leave to amend; defendants’ motions for summary judgment were granted as to the third, fourth, fifth, sixth and seventh counts. After the last count (Count III) had been disposed of upon motion, Mrs. Kirgan appealed. We dismissed that appeal on our own motion because no final judgment had been entered, whereupon the Circuit Court, at appellant’s request, entered a final judgment for costs so that this third appeal could be taken. -COUNTS I AND II- We begin our discussion with the question of Mrs. Kirgan’s standing to sue Mr. Parks, his partners and his law firm for negligence in the preparation of Mr. Plitt’s will, and we will attempt to clarify our “definite maybe” response. Whether couched in terms of tort or contract, the claim against the attorneys for failing to carry out Mr. Plitt’s testamentary intentions is one for professional malpractice — breach of the attorneys’ duty of diligence and care.

As Judge Wilner, speaking for this court in Clagett v. Dacy, 47 Md.App. 23, 25 , 420 A.2d 1285 (1980), pointed out: The traditional rule, in Maryland and elsewhere, is that an attorney’s duty of diligence and care flows only to his direct client/employer, and that, whether in an action of contract or tort, only that client/employer can recover against him for a breach of that duty. The Court of Appeals adopted that view in Wlodarek v. Thrift, 178 Md. 453 [ 13 A.2d 774 ] (1940), an action for breach of contract, and in Kendall v. Rogers, 181 Md. 606 [ 31 A.2d 312 ] (1943), an action based on negligence. Wlodarek and Kendall both arose out of title problems. In the former, the attorney had examined title to a parcel of real estate and incorrectly reported it to be good.

Title eventually passed to persons other than the attorney’s client. The Court held that the successors in title could not recover from the attorney because the duty of the attorney did not extend to them. In the latter case, an attorney ⁸ employed by the purchaser of a farm to clear up a defect in title that had existed prior to the vendor’s acquisition of the farm erroneously told the vendor that under the covenant of special warranty in the deed the vendor was obliged to correct the defect. After the vendor spent over $3000 to correct the title defect, he learned that he had had no liability to do so and sued the purchaser’s attorney.

Concluding that there was no attorney-client relationship between the parties, the Court held that there was no cause of action. Adopting a test stated in Maryland Casualty Co. v. Price, 231 F. 397, 401 (4th Cir., 1916), the Court said that in order to recover against an attorney for negligence a plaintiff must prove (1) the attorney’s employment; (2) his neglect of a reasonable duty; and (3) loss to the client proximately caused by that neglect of duty. The Court of Appeals did depart from the direct privity requirement in Prescott v. Coppage, 266 Md. 562 , 296 A.2d 150 (1972). Coppage, the receiver for an insolvent deposit insurance company, sued Prescott, a court appointed special counsel for Medley, the receiver of an insolvent savings and loan association that was indebted to the insurance company, alleging that, because of erroneous advice given by Prescott, Medley had wrongfully paid moneys from his receivership estate to depositors instead of to Coppage, whose claim had priority.

The Court reasoned that all creditors of the savings and loan association were third party beneficiaries of the receivership; that Prescott had a duty to aid the receiver in the performance of his duties; that the creditors, including Coppage, were thus third party beneficiaries of Prescott’s performance of his court appointed duties; and that Coppage, as third party beneficiary, could sue to recover losses occasioned by improper performance of those duties. As Judge Wilner noted in Clagett, 47 Md.App. at 27-28 , 420 A.2d 1285 , although the facts in Prescott were unusual, the case represented a modest relaxation of the strict privity requirement, limited to actions based upon contract and ⁹ only in favor of one who would qualify as a third party beneficiary of the contract. Neither the Court of Appeals nor this court has heretofore had the occasion to address the specific question as to whether a testamentary beneficiary has standing to sue the attorney who drafted the testator’s will. Appellate courts in California, Connecticut, Wisconsin, Nebraska, Illinois, Florida, Pennsylvania and the District of Columbia have addressed that question with somewhat varying results.

One of the leading cases is Lucas v. Hamm, 56 Cal.2d 583 , 15 Cal.Rptr. 821 , 364 P.2d 685 (1961), in which named beneficiaries of a testamentary trust brought an action against the attorney who had prepared the will for the decedent, alleging negligence in overlooking the rule against perpetuities, as a result of which the trust was determined to be invalid. The Court overruled its early case of Buckley v. Gray, 110 Cal. 339 , 42 P. 900 (1895), which had held that an attorney could not be liable to a legatee for alleged negligence in preparing a will because there was no privity between them. Instead, the Court relied on its more recent holding in Biakanja v. Irving, 49 Cal.2d 647 , 320 P.2d 16 (1958), in which a notary public who, although not authorized to practice law, had prepared a will but negligently failed to direct proper attestation, as a result of which the will was invalid and a named legatee failed to receive his bequest. The notary was held to be liable despite the lack of privity as a matter of policy.

The Lucas court noted that in the case before it, as in Biakanja , the main purpose which the testator and the defendant intended to accomplish was to provide for the transfer of property to the plaintiffs. In both instances it was foreseeable that harm would befall the beneficiaries if the bequest was invalid, and in both instances it was certain that the plaintiffs would have received the intended benefits but for the asserted negligence of the defendants. The Court noted that “if persons such as plaintiffs are not permitted to recover for the loss resulting from the negligence of the draftsman, no one would be able to do so, and the policy of ¹⁰ preventing future harm would be impaired.” 15 Cal.Rptr. at 824 . Specifically, the Court held that lack of privity did not preclude a tort action and that a beneficiary could also maintain an action in contract as a third party beneficiary of the employment agreement between attorney and client. 2 In accord with Lucas is Heyer v. Flaig, 70 Cal.2d 223 , 74 Cal.Rptr. 225 , 449 P.2d 161 (1969), in which children of a testatrix were permitted to maintain an action against the attorney draftsman of the will who was aware of the testatrix’s intent to remarry but failed to insert language that would prevent her husband from claiming part of the estate as a post-testamentary spouse.

The Court noted, however, that contract liability was superfluous because negligence was the crux of the action in any case. Compare, however, Hiemstra v. Huston, 12 Cal.App.3rd 1043, 91 Cal.Rptr. 269 (1970), holding that where the will was validly executed by a testator possessed of testamentary capacity and there was no defect that prevented the testator’s intention as expressed in the will from being carried out, a complaint that the attorney prepared the will in ignorance of the testator’s true intentions did not state a cause of action. See also, Ventura County Humane Society v. Holloway, 40 Cal.App.3d 897 , 115 Cal.Rptr. 464 (1974); Garcia v. Borelli, 129 Cal.App.3d 24 , 180 Cal.Rptr. 768 (1982). Although Nebraska apparently continues to cling to the stringent requirement of privity, see Lilyhorn v. Dier, 214 Neb. 728 , 335 N.W.2d 554 (1983); St. Mary’s Church v. Tomek, 212 Neb. 728 , 325 N.W.2d 164 (1982), Pennsylvania, Wisconsin, Florida and the District of Columbia have followed Lucas and its progeny in recognizing the right of a testamentary beneficiary to recover if, because of negligence on the part of the attorney draftsman, the testamentary intent expressed in the will is frustrated.

See Guy v. ¹¹ Liederbach, 501 Pa. 47 , 459 A.2d 744 (1983) (where specific legacy invalidated by New Jersey probate court because legatee was a subscribing witness to the will, recovery allowed in contract but not in tort); McAbee v. Edwards, 340 So.2d 1167 (Fla.App.1976) (case similar to Heyer v. Flaig, supra; reasoning of the California Court adopted); Needham v. Hamilton, 459 A.2d 1060 (D.C.App.1983) (attorney admittedly left out