Belt v. Oppenheimer, Blend, Harrison & Tate, Inc., 192 S.W.3d 780 (Tex. 2006).

Other Estate Planning Matters



Executors sued Attorneys who prepared Testator’s will asserting that Attorneys provided negligent advice and drafting services. Executors believed that Testator’s estate incurred over $1.5 million in unnecessary federal estate taxes because of the malpractice. Both the trial and appellate courts agreed that Executors had no standing to pursue the claim because of lack of privity. Belt v. Oppenheimer, Blend, Harrison & Tate, Inc., 141 S.W.3d 706 (Tex. App.—San Antonio 2004). The appellate court explained that privity was mandated by Barcelo v. Elliott, 923 S.W.2d 575 (Tex. 1996), and thus the court had no choice but to affirm the trial court’s grant of a summary judgment in favor of Attorneys. The Supreme Court of Texas reversed and held that “there is no legal bar preventing an estate’s personal representative from maintaining a legal malpractice claim on behalf of the estate against the decedent’s estate planners.” The court did not express an opinion as to whether Attorney’s conduct actually amounted to malpractice.

Below are some of the key points made by the court:



[T]he threat of suits by disappointed heirs after a client’s death could create conflicts during the estate-planning process and divide the attorney’s loyalty between the client and potential beneficiaries, generally compromising the quality of the attorney’s representation. * * * [S]uits brought by bickering beneficiaries would necessarily require extrinsic evidence to prove how a decedent intended to distribute the estate, creating a “host of difficulties.” * * * [B]arring a cause of action for estate-planning malpractice by beneficiaries would help ensure that estate planners “zealously represent[ed]” their clients.







while an injury occurred during the decedent’s lifetime for purposes of determining survival, the statute of limitations for such a malpractice action does not begin to run until the claimant “discovers or should have discovered through the exercise of reasonable care and diligence the facts establishing the elements of [the] cause of action.” * * * In this case, the “claimant” may be either the decedent or the personal representative of the decedent’s estate.


Moral: Estate planners are now subject to potential malpractice actions brought by the personal representative of their client’s estate.