Parks v. Fink

• Decision Date: 04 February 2013
• Docket Number: No. 67527–3–I.,67527–3–I.
• Citation: 293 P.3d 1275
• Parties: Terry PARKS, Appellant, v. Janyce Lynn FINK, an individual, and Fink Law Group PLLC, a Washington professional limited liability company, Respondents.
• Court: Washington Court of Appeals

293 P.3d 1275

Terry PARKS, Appellant,

v.Janyce Lynn FINK, an individual, and Fink Law Group PLLC, a Washington professional limited liability company, Respondents.

No. 67527–3–I.

Court of Appeals of Washington,

Division 1.

Feb. 4, 2013.

Vic Sung Lam, Law Offices of Vic Sung Lam, Seattle, WA, for Appellant.

Jeffrey A. Smyth, Shaunta M. Kibb, Smyth & Mason, Seattle, WA, for Respondents.

LAU, J.

¶ 1 In this attorney negligence case, nonclient Terry Parks alleges that attorney Janyce Fink owed him a duty of care to promptly execute the will naming him as a prospective beneficiary. To impose a duty in this case would severely compromise the attorney's duty of undivided loyalty to the client and impose an untenable burden on the attorney-client relationship. We therefore hold that an attorney owes no duty of care to a prospective beneficiary to have a will executed promptly.

FACTS

¶ 2 Testator John J. Balko suffered from terminal cancer. He signed a will prepared by attorney Alan Montgomery in the presence of two witnesses and a notary public on November 9, 2005, leaving specific gifts to John Rich and Victoria Doyle and the residue of the estate to “Betty Rich” and Craig Eckland in equal shares. It is undisputed that the name “Betty Rich” was a clerical error and Balko meant “Betty Parks,” his aunt.

¶ 3 Attorney Janyce Fink performed various legal services for Balko from 2001 until Balko's death in 2007. She met with Balko—who was hospitalized for cancer treatment—in March 2006 to discuss the “Betty Rich” error in the 2005 will. At Balko's direction, Fink drafted a new will correcting this error. Fink stated this was “essentially a ‘blank’ Will for [Balko] to fill in because [Fink] was concerned about the error in his 2005 Will and the fact that he was preparing to have a stem cell transplant....” The draft will left Balko's estate to “Betty Parks” and contained several blanks requiring Balko's attention. Fink brought the will to Balko in the hospital on the evening of April 26, 2006.¹ Balko reviewed the document and either he or Fink handwrote into one of the blanks: “If Betty Parks does not survive me, I give the residue of my estate as follows: Terry Parks (son of Betty Parks).” (Emphasis indicates handwriting in the blank space).² Balko also filled in several other blanks, initialed each handwritten insertion, and signed and dated all of the signature blocks.

¶ 4 Fink testified that she did not know why Balko signed the draft will. ³ She claimed she “didn't bring it to him with the idea that this was going to be the evening that he ultimately signed this document.” She stated that she “brought [the new will] to him to take and review, fill out, thinking that either the next day or the day after, he would actually sign it in front of two witnesses and have a notary available.” She brought no witnesses to the April 26 meeting because she did not intend to conduct a formal signing ceremony that day. In her answer to Parks's interrogatories, Fink stated, “There was no intention to execute a final Will at that time—I knew full well that there were no notaries who could attest to the witnesses' signatures in the hospital in the evening.” Fink stated her “intent was for [Balko] to fill out the ‘blank’ Will then give the document back to [her] to type up a clean version for him to sign at a later date and in front of two witnesses and the notary.” Fink stated she brought the document to Balko “for him to look at, to write anything in there if he wanted [her] to take it back and redraft it.”

¶ 5 Fink testified that she advised Balko on April 26 that the new will was invalid until he had it witnessed and notarized. Fink testified that she “very plainly explained to [Balko] that, without two witnesses watching him sign his Will, and then expressly attest to said signing, the document was not any good and would not serve to distribute his assets upon his death.” Fink left that day “knowing that [Balko] was very clear that the 2006 Draft Will was not valid” and Fink “understood that [Balko] did not want to do further work on the Will until ‘he was feeling better.’ ”

¶ 6 Fink testified that she took the signed draft with her to her office for safekeeping and kept it in an envelope stamped “original.” She testified she regularly stored documents for Balko because he did not want to keep documents in the hospital. Fink testified that on several occasions after April 26, she advised Balko that he should formally sign the will in front of witnesses and a notary, but Balko repeatedly refused, grew agitated, and claimed he wanted to wait until he was feeling better. Fink testified that she wrote and hand delivered three letters to Balko—in September 2006, January 2007, and March 2007—explaining each time that he should have the new will witnessed and notarized if he wanted to revoke the 2005 will.⁴ She also stated that she brought other blank wills to Balko after April 2006—at least once with a notary present—but Balko “wouldn't do it. He wanted to wait until he felt better.”

¶ 7 Alan Montgomery's declaration testimony indicates that he discussed the 2005 will with Balko in September 2006. According to Montgomery,

[Balko] said the name ‘Betty Rich’ in the 2005 Will was wrong, that it should have been Betty Parks, and that Betty Parks had already died leaving Craig Eckland as the main beneficiary under that will. [Balko] said that “Terry” will be his main heir instead of Craig Eckland, and needed to change his will but wanted to think about it more before doing so.

Montgomery never discussed the April 2006 draft will with Balko and had “no knowledge about what [Balko] might have understood about its validity or how it affected the 2005 Will.”

¶ 8 Parks disputes these facts. He submitted two declarations by Balko's girl friend, Victoria Doyle. In the first declaration, Doyle stated that because Betty Parks's health was fragile, Balko “wanted Betty Parks' son and his cousin, Terry Parks, to take Betty Parks's place in case something happened to her.” Doyle claimed Balko “never wavered or changed his mind on that.” Doyle stated that in April 2006, Balko came back to his hotel one day “feeling very relieved because he had just signed and finalized a new will Ms. Fink had prepared and brought to him at the hospital.” Doyle claimed Balko assured her that all wills and legal papers were taken care of and were stored at Fink's office. Doyle claimed that when Balko's health worsened, Fink “began panicking about the fact that [Balko] might never wake up from his coma.” Doyle claimed that around the time Balko died, Fink suggested that Doyle and Parks sign the 2006 will and then “find” the will.

¶ 9 In her second declaration, Doyle testified that in early 2006, she and Balko learned that Betty Parks was terminally ill. Doyle stated that shortly after learning this, Balko told her he was going to add Terry Parks to his will in case Betty predeceased him. Doyle stated that in April 2006, Balko told her he “was relieved because his will was signed and everything was in order.”

¶ 10 Parks also submitted declarations by his wife, Elizabeth,⁵ and Betty Parks's live-in caretaker, Lisa Kane. Elizabeth stated that in July 2007, Parks called her and told her that “Mr. Balko's lawyer, Ms. Janyce Fink, had just told him he was the main beneficiary in Mr. Balko's will.” Kane testified that she knew “without a shadow of a doubt that Mr. Balko wanted his money to go first to Betty Parks after his death, but if she passed away before Mr. Balko, Mr. Balko wanted his money to go to Mr. Terry Parks, who could use the money for the missing children charity.”

¶ 11 In Parks's responses to Fink's first set of interrogatories, he claimed that on July 10, 2007, Fink “told [him] in private that Mr. Balko's will was in order and that [he] was the main beneficiary.” He also claimed that on July 11, Fink “told [him] that she and [he] would be co-executors or co-personal representatives for Mr. Balko's estate.” According to Parks, Fink told him they “needed to find the notarized and witnessed 2006 will” and Fink “said that she gave Mr. Balko the 2006 will that was signed but not witnessed to have it witnessed and notarized.” Parks claimed that on July 12, doctors told them they should consider taking Mr. Balko off life support and Fink “asked whether [they] could get the doctors to make Mr. Balko ‘lucid’ so that we can get the will signed and witnessed.” Parks also claimed that on July 14, after the decision to take Mr. Balko off life support, Fink spoke with him in private and “suggested that she would leave the unwitnessed 2006 will in Mr. Balko's hotel room, and Laurie Doyle and [he] could sign as witnesses on the 2006 will and ‘find’ the 2006 will before our scheduled dinner the next day....” Parks also claimed Fink asked him to sign an agreement to hire a lawyer to represent Fink and Parks and hopefully get “the 2006 will probated in court even though it was not witnessed or notarized.” A copy of this purported agreement appears in the record but is not signed or initialed by any of the parties. The agreement states only that Dussault Law Group will serve as attorney for Fink and Parks “with regard to Probate of the Estate of [Balko].” A letter from Fink to Dussault also appears in the record. In that letter, Fink acknowledged signing the attorney-client fee agreement and stated that she and Parks were going to Balko's safe deposit box to inventory its contents.

¶ 12 Regarding Parks's allegations regarding her conduct around the time Balko died, Fink stated that because of Balko's history of “having gone independently to Al Montgomery to have the 2005 Will prepared, [she] was not 100% certain that [she] knew what all he had done in regards to Wills....” After Balko died, Fink wanted to find out if he had formalized another will before his death, so she asked Parks and Doyle to “keep an eye out for documents that were notarized and/or witnessed,...