Wilson v. Clancy, Civ. No. S 89-3072.
| Decision Date | 17 October 1990 |
| Docket Number | Civ. No. S 89-3072. |
| Citation | 747 F. Supp. 1154 |
| Parties | Beverly B. WILSON, Plaintiff, v. Joseph Patrick CLANCY, Defendant. |
| Court | U.S. District Court — District of Maryland |
William J. Murphy, Murphy & McDaniel, Baltimore, Md., for plaintiff.
Charles Martinez, Eccleston & Wolf, Baltimore, Md., for defendant.
This is a diversity case, in which the plaintiff, a disappointed testamentary beneficiary, brings a third-party malpractice suit against the attorney who drafted the 1987 Last Will and Testament of Dr. Thomas A. Hurney. The matter is before the Court on a summary judgment motion directed to be filed by the Court when it reviewed the pretrial order and questioned whether there was a triable issue in the case. (A summary judgment motion had not earlier been filed, according to defense counsel, because of a substitution of counsel well into the discovery/motions phase of the case.) The motion has been duly opposed, and no oral argument is needed.
The defendant was a longtime family friend and attorney for Dr. Hurney, the testator. In 1968, the defendant prepared wills for Dr. and Mrs. Hurney, under which, at the death of the last of them, their property would be divided among their relatives in such a fashion that the plaintiff would, in effect, receive a one-eighth share. By 1987, the Hurneys' physical conditions had deteriorated to the extent that Mrs. Hurney was in a nursing home and Dr. Hurney, although not institutionalized, required home health care. The parties agree that Dr. Hurney engaged Mr. Clancy in 1987 to draft a new will (the 1987 will) for him (the plaintiff does not allege that Mr. Clancy was ever engaged to draft a new will for Mrs. Hurney), whereby trusts were created to take care of Mrs. Hurney following the death of Dr. Hurney and to take care of another aged relative of Dr. Hurney (his sister) until her death, should Mrs. Hurney have predeceased him. Under this new will, after the deaths of these two people, the trusts were to terminate and the residue was to be split in half between plaintiff and another relative of Dr. (but not Mrs.) Hurney. The trusts were to be funded with all of Dr. Hurney's property.
Dr. Hurney predeceased Mrs. Hurney, owning essentially no property in his own name at the time of his death, the couple's valuable assets being then held by them jointly with right of survivorship, as they had been when the 1987 will was drafted. Meanwhile, it will be remembered, Mrs. Hurney's Last Will and Testament at her death was her 1968 will, giving plaintiff a one-eighth share, not a one-half share, in her estate.
As can readily be seen, had Dr. Hurney held sole title to all the couple's valuable property at his death, Mrs. Hurney's 1968 will would have been de facto defunct, and plaintiff would have taken half the Hurneys' property under the Doctor's 1987 will. Unfortunately for plaintiff, as noted above, all the couple's property (except Dr. Hurney's Rolex wristwatch and a $6000 car) was held by the couple at the time of Dr. Hurney's death in a joint tenancy with the right of survivorship. Accordingly, it passed directly to Mrs. Hurney outside the Doctor's 1987 will, and, upon Mrs. Hurney's death, it passed under Mrs. Hurney's 1968 will, the net result being that plaintiff wound up with about $220,000 less than she would have, had Dr. Hurney held the couple's valuable property in his sole name at the time of his death.
To start its legal analysis, the Court accepts that Maryland has recognized the right of disappointed beneficiaries to sue the drafter of an allegedly deficient will, at least where the testator's clear intent to bequeath property to the plaintiff has been frustrated by the drafter's negligence. See Layman v. Layman, 84 Md. App. 183, 189-91, 578 A.2d 314 (1990). See also Flaherty v. Weinberg, 303 Md. 116, 492 A.2d 618 (1985); Kirgan v. Parks, 60 Md.App. 1, 478 A.2d 713 (1984). As in other cases of malpractice, the plaintiff must prove deviation from the standard of care on the part of the accused attorney, which has proximately caused her an injury. In this case, the essence of plaintiff's position is that the 1987 will was prima facie a piece of malpractice, in that it purported to devise jointly held property, a legal impossibility.
Of course, the will does not in haec verba devise joint property to non-joint tenants. It is true that the will does bequeath to Mrs. Hurney, in trust, any bonds and bank accounts held jointly by the couple at the time of Dr. Hurney's death, but this language is surplusage, in that such property would have passed to Mrs. Hurney anyway free of trust at the time of Dr. Hurney's death. It certainly could be that such joint property might have been de minimis at the time of Dr. Hurney's death, as would have been the case had he transferred the couple's substantial jointly-held assets to his sole name before he died, as Mr. Clancy says he told Dr. Hurney to do. Of course, any language in Dr. Hurney's will purporting to bequeath jointly held property to the residuary legatees under that will at the time of Mrs. Hurney's death would have been unenforceable anyway, and nothing that Mr. Clancy could have inserted in Dr. Hurney's will could have made it otherwise. The drafter's failure to accomplish the legally impossible would obviously provide the present plaintiff with no grounds for suit against Mr. Clancy. See Layman v. Layman, supra. Thus, contrary to plaintiff's position, the words of the will do not themselves establish malpractice. Rather, there could be malpractice only if defendant did not realize, or advise his client of, the need to change the titling of the couple's substantial property to Dr. Hurney's sole name to bring it within his testamentary estate.
The defendant has testified on deposition that he realized that the jointly held property of the Hurney couple could not pass to the named residual beneficiaries under the Doctor's 1987 will, and that, accordingly, he advised Dr. Hurney repeatedly that, in order for the 1987 will to be effective in accordance with Dr. Hurney's wishes, Dr. Hurney would have to see to it that the couple's property was transferred from joint ownership to Dr. Hurney's sole ownership.
The plaintiff, now frustrated by her inability, by reason of Dr. Hurney's death, to refute this testimony directly, argues that the mere fact that Mr. Clancy delivered a will to Dr. Hurney that purported to bequeath jointly held property demonstrates malpractice. The problem with this argument is that there was nothing wrong with the wording of the will itself in this particular regard (the several alleged drafting errors found by plaintiff's expert witness going to other claimed defects not involved in this suit), nor was there anything wrong with Mr. Clancy's advice to Dr. Hurney in general, if Mr. Clancy is to be believed. In fact, plaintiff would have received the half share she now seeks had Dr. Hurney but taken the steps he assured defendant he would take to change the form of ownership of the property. Certainly, it is not malpractice for an attorney to draft a will that he or she knows will not be effective until the client takes further steps and, at the same time, to advise the client to take those steps. The defendant's deposition testimony establishes that that was just what he did.
The case of McLane v. Russell, 159 Ill. App.3d 429, 111 Ill.Dec. 250, 512 N.E.2d 366 (1987), cited by the plaintiff in her pre-trial order, is not to the contrary. In McLane, the testator wished to leave her half of a farm that she owned jointly (with right of survivorship) with her sister to the plaintiff. The testator engaged the defendant to draft a will so providing, which he did, but, of course, it would have been impossible to bring the property within the will unless either the other sister conveyed her half to the testator or the property was partitioned. There was apparently no evidence that the lawyer had ever brought this matter to the testator's attention or had advised her to have the property judicially partitioned, which would have been necessary because of the other sister's mental incompetence, well known to the lawyer, who was also the incompetent sister's guardian. In the instant case, the plaintiff herself in fact insists that the Hurneys' property could have been retitled by Dr. Hurney alone, without the consent or participation of Mrs. Hurney, which is just what Mr. Clancy told him to do. Sound advice that is not followed does not constitute malpractice.
The defendant, having produced evidence that he fulfilled his duty to advise Dr. Hurney to change the ownership form of the couple's property in order to effectuate the 1987 will's intent, is entitled to summary judgment unless the plaintiff can come up with some evidence to generate a triable dispute on this sole dispositive fact. Anderson v....
To continue reading
Request your trial
-
Hamilton v. Mayor & City Council of Baltimore
...does not create a “ triable issue unless plaintiff produces competent evidence that contradicts” defendants' exhibits. Wilson v. Clancy, 747 F.Supp. 1154, 1158 (D.Md.1990); see Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (“When opposing parties tell two differ......
-
Berlyn, Inc. v. Gazette Newspapers, Inc.
...as to the source of this document, thus raising technical problems of admissibility under FED.R.EVID. 802 and 901, see Wilson v. Clancy, 747 F.Supp. 1154 (D.Md.1990), aff'd 940 F.2d 654 (4th Cir.1991), nor do they assert that this document is the result of a careful inquiry aimed at definin......
-
Marylanders for Fair Representation, Inc. v. Schaefer, Civ. A. No. S-92-510
...475 U.S. at 587, 106 S.Ct. at 1356, but only such evidence as would be admissible at trial can be considered. See Wilson v. Clancy, 747 F.Supp. 1154, 1158 (D.Md.1990), aff'd, 940 F.2d 654 (4th Cir. 1991). III. POPULATION EQUALITY A. The Legal Standards The "one person, one vote" principle w......
-
Korotki v. Attorney Services Corp. Inc.
...simply because he hopes that "the jury will disbelieve the evidence that the summary judgment movant has adduced." Wilson v. Clancy, 747 F.Supp. 1154, 1158 (D.Md.1990). See also DF Activities Corp. v. Brown, 851 F.2d 920, 922 (1988) ("A plaintiff cannot withstand summary judgment by arguing......