Tuesday, March 12, 2013

Ogle v. Fuiten case brief

Ogle v. Fuiten case brief summary

D, atty, was hired by deds to draft their joint wills. The deds intended to leave their property to Ps if either of the deds failed to survive the other by 30 days. In drafting the wills D negligently omitted to include Ps as benefs. Deds died within 15 days of each other, and their estates passed into intestacy to persons other than Ps. Ps sued for (1) negligently drafting the wills and frustrating the ded’s intentions to pass their property to Ps, and (2) failure to perform the K to fulfill the ded’s testamentary wishes, and failed to benefit Ps.

ISSUE: Does the fact that wills are determined to be valid preclude a negligence action based on an attys having drafted wills that do not comport with the ded’s intent that certain benefs take under those wills? >>>NO<<<

ISSUE: is an atty liable to intended benefs who have been damaged by the atty’s negligent drafting of his client’s wills? >>>YES<<<

- in order to sustain the K COA, the Ps must allege and prove that the primary purpose and intent of the atty-client relationship was to benefit the 3rd party.
- Both the K and negligence theory assume that a atty has a duty to the will benefs as well as to his clients.
- Why use both? May have to sue under K because tort may not be available due to the SOL. Ks have a much longer SOL than tort actions.
- The majority of cases considering bereft will benefs against the drafter within the last 30 yrs have agreed that a malpractice action can be based upon one or both of the theories.
- The duty of the atty who is a general practitioner is to refer the client to a specialist if the atty cannot handle the matter with reasonable skill and care, and if he fails to refer to or consult a specialist when one is needed, the atty may be held to the standard of skill ordinarily possessed by a specialist.
- The role of the court in will interpretation is that the T is to find the true intent of the testator and carry out that intent so that the will benefits the proper heirs/legatees.

- The question is how far should the TJ go in disregarding the will to get to the testator’s intent?
The atty’s notes may be very important
Other witnesses

Need to zero in on the proof that shows that the will as written does not reflect the testator’s intent. - In a 3rd party malpractice action (Ogle), the 3rd party does not need privity to bring the suit. However, they do have to prove that but for the atty’s negligence they would have recovered, and that they are not recovering.
- Attys who are found guilty of malpractice usually cannot sue the parties who negligently received the property in order to get it back. Courts won’t rectify a atty’s mistake and penalize the intestate heirs. Also, most of the time the atty doesn’t lose either because he has malpractice insurance. 

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