Walker v. Lawson

• Decision Date: 04 August 1988
• Docket Number: No. 49S02-8808-CV-714,49S02-8808-CV-714
• Citation: 526 N.E.2d 968
• Parties: Shawn Eric WALKER, Appellant, v. John W. LAWSON, Appellee.
• Court: Indiana Supreme Court

Page 968

526 N.E.2d 968

Shawn Eric WALKER, Appellant, v. John W. LAWSON, Appellee.

No. 49S02-8808-CV-714.

Supreme Court of Indiana.

Aug. 4, 1988.

Stephen Gerald Gray, Indianapolis, for appellant.

Charles F. Cremer, Jr., Robert G. Zeigler, Cremer & Hobbs, Indianapolis, for appellee.

ON CIVIL PETITION FOR TRANSFER

GIVAN, Justice.

In an opinion published in 514 N.E.2d 629, the Court of Appeals reversed the trial court's grant of summary judgment in favor of appellee John W. Lawson. We agree with the Court of Appeals that an action will lie by a beneficiary under a will against the attorney who drafted that will on the basis that the beneficiary is a known third party.

However, we disagree with the Court of Appeals' decision that there was a question of fact to be determined concerning the competency of the appellee in the drafting of a will as opposed to other alleged alternatives to accomplish the purpose of preserving the testator's entire estate for her minor children.

Appellant is one of the decedent's two children who were beneficiaries under her will. The facts show that in the spring of 1980 Sybille Willard, the decedent in this case, learned that she had cancer and approached Lawson for legal advice as to the disposition of her estate. At that time, she was married to Thomas Willard, a second, childless spouse. Sybille's two sons were by her first husband. The bulk of her estate consisted of a single-family residence located in Marion County, Indiana, which she had obtained by the use of life insurance proceeds received upon the death of her first husband. She indicated to Lawson that she wished to leave her entire estate to her two minor sons.

It is alleged that Lawson failed to advise Sybille that Thomas could elect to take against the will and receive a statutory share of one-third of the net personal estate of Sybille plus a life estate in one-third of her real estate. Lawson denies the allegation that he failed to properly advise Sybille. Whether such advice was given or not is of no moment. Under the law, Lawson's action was limited.

A will was prepared providing that the entire estate pass in trust for the benefit of Sybille's two sons. The will contained a clause indicating that Thomas was purposely omitted from any devise as he would be benefiting from the residence during her lifetime and would be allowed to occupy the residence as the guardian of her two sons. Sybille died on October 28, 1980, and the will was properly probated. However, following probation of the will, Lawson prepared a document by which Thomas elected to take against the will and receive his statutory share under Ind.Code Sec. 29-1-3-1.

As we view the case, at the time Sybille came to Lawson, she was aware of the fact that she had cancer and in fact she did die within the year. There could be little doubt but that the conversation between Lawson and Sybille addressed the dilemma of how she was to dispose of her estate in contemplation of death.

Appellant claims that Lawson chose the worst possible alternative, under the circumstances, in suggesting and drafting a will. He contends Lawson should have in fact either created a trust similar to the trust in Leazenby v. Clinton County Bank and Trust Co. (1976), 171 Ind.App. 243, 355 N.E.2d 861 or should have established a joint tenancy among Sybille and her two sons. However, Lawson was faced with the established law that a spouse cannot by gifts in contemplation of death deprive a surviving spouse of his or her statutory share in the estate. Crawfordsville Trust Co. v. Ramsey (1913), 55 Ind.App. 40, 100 N.E. 1049, reh'g denied, 55 Ind.App. 75, 102 N.E. 282. Lawson was also faced with the existing case law holding that the statute, Ind.Code Sec. 29-1-3-1, is designed to make it impossible for a spouse to deprive the surviving spouse of a full one-third of the property. Haas v. Haas (1951), 121 Ind.App. 335, 96 N.E.2d 116, reh'g denied, 121 Ind.App. 335, 98 N.E.2d 232.

It is true that in Leazenby, supra the Court of Appeals held that an inter vivos trust established by a wife successfully transferred her property and thus removed it from her estate in effect defeating her husband's interests under Ind.Code Sec. 29-1-3-1. However, the facts in Leazenby are entirely different than the facts in the case at bar. In Leazenby, the Court of Appeals recognized that a transfer solely for the purpose of defeating the spouse's statutory share is void. However, the Court of Appeals went on to find that Mrs. Leazenby and her husband had maintained their separate properties and that she had gone to the bank to establish a trust for the purpose of obtaining aid in the handling of her affairs. As time went on, she was confined to a nursing home and her separate funds were used to pay for the nursing home care through the trustee. The court observed that it was obvious her husband knew of this situation and acceded to it. There is no indication in Leazenby that it was the settlor's intent to use the device of a trust to defeat her husband's statutory share in her estate. She had merely conveyed a portion of her estate during her lifetime, which she had every right to do. See Ind.Code Sec. 31-7-10-2.

In the case at bar, Lawson was faced with an entirely different situation. Sybille had not come to him to establish a trust to facilitate the handling of her affairs but had come for the stated purpose of depriving her husband of any interest in her estate. Thus Lawson...