Leak-Gilbert v. Fahle, 97,540.

• Citation: 2002 OK 66,55 P.3d 1054
• Decision Date: 16 July 2002
• Docket Number: No. 97,540.,97,540.
• Parties: Aleecia LEAK-GILBERT and Dolcie Leak, Plaintiffs, v. Pauline FAHLE, Defendant.
• Court: Supreme Court of Oklahoma

55 P.3d 1054

2002 OK 66

Aleecia LEAK-GILBERT and Dolcie Leak, Plaintiffs, v. Pauline FAHLE, Defendant.

No. 97,540.

Supreme Court of Oklahoma.

July 16, 2002.

Timothy A. Heefner, Kirk Olson, Oklahoma City, Oklahoma, for Plaintiffs.

John B. Hayes, Robert D. Dennis, Oklahoma City, Oklahoma, for Defendant.

KAUGER, J:

¶ 1 We are asked to answer two questions: 1) whether, in the absence of a specific request by the client, an attorney owes a duty to the client or to the beneficiaries named in the client's will to conduct an investigation into the client's heirs independent of, or in addition to, the information provided by the client; and 2) whether the residual beneficiaries under a decedent's will have a cause of action for legal malpractice against the attorney who drafted the will under a theory of negligence or breach of contract when the will fails to identify all the decedent's heirs? We hold that: 1) when an attorney is retained to prepare a will, the attorney's duty to prepare the will according to the testator's wishes does not ordinarily include an investigation of a client's heirs independent of, or in addition to, the information provided by the client, unless the client requests such an investigation; and 2) an intended will beneficiary may maintain a legal malpractice action under either negligence or contract theories against the drafter when the will fails to identify all the decedent's heirs as a result of the attorney's substandard professional performance.

FACTS

¶ 2 This cause concerns a dispute over the will of a widower, Edward Leak (Mr. Leak/decedent), which was executed in Taloga, Oklahoma, on February 4, 1997. In early 1997, Mr. Leak hired the defendant, Pauline Fahle (Fahle/lawyer) to update his will. According to the lawyer, Mr. Leak gave her a copy of his existing will. He told her that he wanted to change his personal representative to his daughter-in-law, Jolene Leak, the wife of his deceased son, and that he also wanted her to receive his gun collection.

¶ 3 The lawyer insists that Mr. Leak identified his only heirs as the children of his deceased son (Alvin Troy Leak), Alvin James Leak, and the plaintiffs, Aleecia Leak-Gilbert and Dolcie Leak (beneficiaries). Mr. Leak also informed the lawyer that he wanted to disinherit the grandson. Consequently, the lawyer prepared a will, made Mr. Leak's requested changes and left the grandson one dollar and gave the granddaughters equal shares of the remainder of his estate.¹

¶ 4 After the Mr. Leak died in December of 1999, the will was submitted for probate. The probate proceeding revealed that Mr. Leak had four additional grandchildren by another deceased son, Clifford Wayne Leak, who were not mentioned in Mr. Leak's will. Consequently, the probate court treated the grandchildren as unintentionally omitted heirs, and it divided the estate among the grandchildren as if the decedent had died intestate.²

¶ 5 On June 22, 2001, the beneficiaries filed a legal malpractice action in federal district court against Fahle, asserting that she was negligent, and that she had breached the contract with the decedent because she failed to properly prepare his will according to his intentions. The beneficiaries allege that Fahle did not complete an investigation into the existence of the decedent's children or grandchildren. They insist that Fahle should have reviewed all of the files of her sister—the lawyer who had probated decedent's wife's will in 1989 which would have disclosed the omitted grandchildren.

¶ 6 The lawyer answered the beneficiaries' complaint and insisted that, while her sister may have handled the probate of the decedent's wife, she died in 1990 and she and her sister never practiced law together. She did admit that they shared an office space for a very short period prior to her sister's death, and that her sister's files remain stored in the office building.

¶ 7 On December 6, 2001, the lawyer moved for summary judgment. Recognizing that state law is determinative of Fahle's liability and that Oklahoma has not addressed the precise issue presented, but that a split of authority exists in other states,³ the federal court certified questions to this Court pursuant to the Uniform Certification of Questions of Law Act. 20 O.S.2001 § 1601 et seq. on April 2, 2002. We set a briefing cycle which was completed on May 14, 2002.

I.

¶ 8 WHEN AN ATTORNEY IS RETAINED TO PREPARE A WILL, THE ATTORNEY'S DUTY TO PREPARE THE WILL ACCORDING TO THE TESTATOR'S WISHES DOES NOT ORDINARILY INCLUDE AN INVESTIGATION OF A CLIENT'S HEIRS INDEPENDENT OF, OR IN ADDITION TO, THE INFORMATION PROVIDED BY THE CLIENT, UNLESS THE CLIENT REQUESTS SUCH AN INVESTIGATION.

¶ 9 The beneficiaries assert that an attorney's duty when preparing testamentary documents includes: 1) inquiring into the client's heirs at law; 2) offering a proper explanation and advising the client as to what is meant by heirs at law and the significance of including all heirs at law in a will; and 3) confirming the heir information by conducting an investigation into a client's heirs independent of, or in addition to, the information provided by the client, even when not requested to do so. The beneficiaries offer no authority recognizing such a duty.⁴

¶ 10 The lawyer does not dispute that the drafter of a will has a duty, absent a specific request by the client, to inquire, explain, or advise a client regarding heirs at law. Rather, she argues that the lawyer has no duty to confirm the client's information by conducting an independent investigation into the client's heirs. The lawyer cites to Stangland v. Brock, 109 Wash.2d 675, 747 P.2d 464 and Leavenworth v. Mathes, 38 Conn.App. 476, 661 A.2d 632 as persuasive authority in support of her argument.

¶ 11 Lawyers are required to exercise ordinary professional skill and diligence in rendering their professional services.⁵ Accompanying every contract is a common-law duty to perform with care, skill, reasonable experience and faithfulness the thing agreed to be done.⁶ Duty of care is a question of law described as the total of policy considerations which lead to the conclusion that the plaintiff is entitled to protection.⁷ If a duty exists, the trier of fact then determines whether a violation of that duty has occurred.⁸

¶ 12 In Stangland v. Brock, supra, an attorney drafted a will for a client leaving all of the client's real property to certain beneficiaries. Three years later, the client sold the real property and another attorney in the same firm prepared the real estate contract. The sale of the real property affected the disposition of the estate. After the testator died, the beneficiaries brought legal malpractice actions against the attorneys asserting that both attorneys, at the time the real estate contract was drafted, had a duty to advise the client that the sale of the property could affect his estate plan.

¶ 13 The Stangland court determined that holding attorneys to such a duty would expand the obligation of a lawyer who drafts a will beyond reasonable limits. It recognized that the time and expense which would be required for the attorney to monitor the testator's activities with respect to his property would prevent the attorney from providing reliable and economical services, and that it would constitute an overwhelming burden on the attorney's practice as a whole. Additionally, holding the attorney to such a duty would place an unreasonable burden on the attorney, would markedly increase the cost of providing legal services, and would impute knowledge of the contents of the client's will.

¶ 14 In Leavenworth v. Mathes, supra, an attorney drafted a will pursuant to the client's wishes which included the distribution of certain assets. When the testator died, the assets of the estate were insufficient to satisfy the specific bequests to the beneficiaries. The beneficiaries brought a negligence action against the attorney. The court held that an attorney owes no duty to will beneficiaries to ensure the existence of testamentary assets when drafting a will. It recognized that although court have allowed intended beneficiaries to maintain a cause of action against attorneys who fail to draft a will in conformity, with a client's wishes, the malpractice claims always focus on errors in the drafting and execution of the will rather than misinformation from clients.

¶ 15 The reasoning behind Stangland and Leavenworth, applies here, where it appears that the attorney may have been given incomplete or inaccurate information.⁹ We agree with the beneficiaries that when an attorney is hired to prepare a will, the attorney's obligation is to: 1) inquire into the client's heirs at law; 2) offer a proper explanation; 3) advise the client as to what is meant by heirs at law; 4) explain the significance of including all heirs at law in a will; and 5) prepare a will according to the client's directions.

¶ 16 However, to hold that an attorney has a duty to confirm heir information by conducting an investigation into a client's heirs independent of, or in addition to, the information provided by the client, even when not requested to do so, would expand the obligation of the lawyer beyond reasonable limits. The duty between an attorney and third persons affected by the attorney-client agreement should not be any greater than the duty between the attorney and the client. Although some exceptional circumstances might exist which would give rise to such a duty, none are present here. Consequently, we hold that, unless the client requests such an investigation, when an attorney is retained to draft a will, the attorney's duty to prepare a will according to the testator's wishes does not include the duty to investigate into a client's heirs independent of, or in addition to, the information provided by the client.

II.

¶ 17 AN INTENDED WILL BENEFICIARY MAY MAINTAIN A LEGAL MALPRACTICE ACTION UNDER NEGLIGENCE OR CONTRACT THEORIES WHEN...