In Donaldson v. Mincey, an attorney drafted estate documents for a father. No. 05-13-00271-CV, 2014 Tex. App. LEXIS 13522 (Tex. App.—Dallas December 17, 2014, pet. filed). The attorney later drafted a trust amendment that would have increased distributions from a trust to the father’s children. The father never signed the amendment and died shortly thereafter. The children, as personal representatives of the estate, sued the lawyer for breach of fiduciary duty and negligence. The trial court granted summary judgment for the attorney.

The court of appeals held that at common law, an attorney owes a duty of care only to his or her client, not to third parties who may have been damaged by the attorney’s negligent representation of the client. The court noted that no duty is owed to non-client beneficiaries, even if they are damaged by the attorney’s malpractice. While disappointed heirs cannot seek to dispute the size of their bequest or their omission from an estate plan, an estate’s personal representative can seek to recover damages incurred by the estate. The court of appeals affirmed the summary judgment because the claims only related to the apportionment of the estate and not that the size of the estate was damaged.

INTERSTING NOTE: There has been increased activity by creative plaintiffs to assert tortious interference with inheritance claims against attorneys retained by a testator. The beneficiaries have no direct cause of action for malpractice, but assert that the attorney interfered with their inheritance by wrongfully creating estate documents when the attorney allegedly knew that the testator was incompetent or was under undue influence.