Smith v. O’Donnell, 52 Tex. Sup. Ct. J. 52 (Tex. 2009).
Other Estate Planning Matters
Malpractice Outside of Estate Planning Context
Executor sued Decedent’s former Attorneys for malpractice
in advising Decedent in his capacity as the executor of his wife’s estate. The
lower court ruled in favor of Attorneys basing its judgment on the fact that
Decedent’s executor and the estate lacked privity of contract with Attorneys.
The Supreme Court of Texas granted a petition for review without reference to
the merits, vacated the lower court’s judgment, and remanded so the lower court
could take into account the holding in
On remand, the Court of Appeals began its analysis by
holding that Belt was not limited to estate planning malpractice
actions. Accordingly, the court explained that Executor stepped into Decedent’s
shoes and could bring whatever malpractice action Decedent could have brought
while alive, even if it did not involve the planning of Decedent’s estate. The
court relied on language in the Belt decision which provided that “legal
malpractice claims alleging pure economic loss survive in favor of a deceased
client’s estate.” The court then examined the evidence and concluded that
although there was no evidence that Attorneys acted with malice or breached
fiduciary duties, there was a triable issue as to what damages were attributable
to Attorneys’ acts. The court remanded the case to the trial court to determine
whether Attorneys’ acts amount to malpractice. O’Donnell v. Smith,
The Texas Supreme Court affirmed. The court agreed with the Court of Appeals that Executor is in the same position as Decedent. If Decedent had not died, Decedent could have brought the malpractice action and thus Executor may bring the action on Decedent’s behalf. The court explained that the concerns about third-party malpractice suits (e.g., by disgruntled beneficiaries) do not apply in this type of case as the estate’s suit is the same as the one the client would have brought; the attorney-client relationship is not jeopardized by the attorney considering the impact on a third party.
Note: The court does not address whether Attorneys’ actions constituted malpractice.
Dissent: A two-judge dissent asserted that this case falls under the Barcelo v. Elliott, 923 S.W.2d 575 (Tex. 1996), rule which precludes a malpractice action by a non-client (e.g., an unhappy beneficiary) against the decedent’s attorney for malpractice because of lack of privity.
Moral: A decedent’s claim for legal malpractice, regardless of whether it involves the planning of the decedent’s estate or some other legal matter, survives and thus may be brought by the decedent’s personal representative.