                                                              2019 WI 31

                  SUPREME COURT            OF   WISCONSIN
CASE NO.:               2016AP2491
COMPLETE TITLE:         David Macleish, Hayden Macleish, Kay Macleish
                        and Robin Macleish,
                                   Plaintiffs-Appellants-Petitioners,
                             v.
                        Boardman & Clark LLP, Quale Hartmann, S.C.,
                        Continental Casualty Company and OneBeacon
                        Insurance Company,
                                   Defendants-Respondents.

                           REVIEW OF DECISION OF THE COURT OF APPEALS
                          Reported at 381 Wis. 2d 471, 915 N.W.2d 455
                                      (2018 – unpublished)

OPINION FILED:          March 26, 2019
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:          January 24, 2019

SOURCE OF APPEAL:
   COURT:               Circuit
   COUNTY:              Dane
   JUDGE:               Josann M. Reynolds

JUSTICES:
   CONCURRED:
   DISSENTED:
   NOT PARTICIPATING:


ATTORNEYS:


       For        the   plaintiffs-appellants-petitioners,   there   were
briefs filed by Douglas W. Kammer, and Kammer Law Office, S.C.,
Portage. There was an oral argument by Douglas W. Kammer.


       For the defendants-respondents, there was a brief filed by
Bruce A. Schultz, Karen M. Gallagher, and Coyne, Schultz, Becker
& Bauer, S.C., Madison. There was an oral argument by Bruce A.
Schultz.
                                                                        2019 WI 31
                                                                NOTICE
                                                  This opinion is subject to further
                                                  editing and modification.   The final
                                                  version will appear in the bound
                                                  volume of the official reports.
No.       2016AP2491
(L.C. No.    2012CV3621)

STATE OF WISCONSIN                           :             IN SUPREME COURT

David MacLeish, Hayden MacLeish, Kay MacLeish
and Robin MacLeish,

              Plaintiffs-Appellants-Petitioners,                      FILED
      v.
                                                                MAR 26, 2019
Boardman & Clark LLP, Quale Hartmann, S.C.,
Continental Casualty Company and OneBeacon                         Sheila T. Reiff
                                                                Clerk of Supreme Court
Insurance Company,

              Defendants-Respondents.




      REVIEW of a decision of the Court of Appeals.                Affirmed.


      ¶1     ANN WALSH BRADLEY, J.       The petitioners, collectively
the MacLeish children,1 seek review of an unpublished court of
appeals decision affirming the circuit court's order dismissing
their      legal   malpractice   claim   against        the     law    firm      that




      1The      petitioners   are   David,       Hayden,      Kay,     and     Robin
MacLeish.
                                                                           No.       2016AP2491



administered        their    father's      estate.2         The    court        of    appeals
assumed without deciding that the MacLeish children could bring
a    claim    for     legal       malpractice         based       on     the      negligent
administration       of     an   estate.        It    nevertheless         affirmed        the
circuit court's dismissal of the claim against the Boardman law
firm3 because the children failed to demonstrate that the firm's
alleged      negligent       administration          of    their       father's        estate
thwarted their father's clear testamentary intent.
      ¶2     The    MacLeish      children      contend      first       that    we    should
alter the test for standing to permit third party non-clients to
bring legal malpractice actions.                 Specifically, they argue that
this court should abandon Auric v. Continental Cas. Co., 111

Wis. 2d 507,        331     N.W.2d 325     (1983),4        and    instead        adopt     the
Restatement (Third) of the Law Governing Lawyers § 51 (2000).
In   the   event     we     do   not   adopt    the       Restatement,      the       parties
advance      that    we      should    reaffirm       the        Auric     exception        to


      2MacLeish v. Boardman & Clark LLP, No. 2016AP2491,
unpublished slip op. (Wis. Ct. App. Mar. 15, 2018) (per curiam)
(affirming order of the circuit court for Dane County, Josann M.
Reynolds, Judge).
      3There are four respondents in this case:      Boardman &
Clerk, LLP, Quale Hartmann, S.C., Continental Casualty Company,
and OneBeacon Insurance Company. We refer to them collectively
as "Boardman."
      4In Auric, we determined that "the beneficiary of a will
may maintain an action against an attorney who negligently
drafted or supervised the execution of a will even though the
beneficiary is not in privity with that attorney."    Auric v.
Continental Cas. Co., 111 Wis. 2d 507, 509, 331 N.W.2d 325
(1983).


                                            2
                                                                            No.    2016AP2491



nonliability      and       apply    it    beyond    claims       of    negligent        will
drafting and execution to also encompass a claim of negligent
administration of an estate.
       ¶3     Alternatively,          applying      the        Auric    exception,       the

MacLeish children further argue that the court of appeals erred
when it determined that the children failed to demonstrate that
their       father's       clear      testamentary         intent       was       thwarted.
According to the children, Boardman's failure to construe the
will to create a trust for their mother for her lifetime with a
remainder interest to them caused them to lose significant tax
benefits and incur additional probate expenses.
       ¶4     We reject the MacLeish children's invitation to adopt

the    Restatement         (Third)    of   the    Law      Governing        Lawyers      § 51
(2000).      The Auric exception remains the operative standard.
       ¶5     We conclude that the narrow Auric exception to the
rule of nonliability of an attorney to a non-client applies to
the administration of an estate in addition to the drafting and
execution of a will.                That is, a non-client who is a named
beneficiary     in     a    will     has   standing       to    sue    an   attorney      for
malpractice       if       the   beneficiary        can        demonstrate        that    the
attorney's negligent administration of the estate thwarted the
testator's clear intent.
       ¶6     Applying Auric to the facts of this case, we determine
that    Charles      MacLeish's        clear     testamentary          intent      was   not
thwarted by any alleged negligence on the part of Boardman.                                As
a result, we conclude that the MacLeish children's claim against
Boardman for legal malpractice was properly dismissed.
                                            3
                                                             No.   2016AP2491



    ¶7      Accordingly, we affirm the decision of the court of
appeals.
                                      I
    ¶8      Charles MacLeish died in April of 1984.           His one-page
will,    which   was   drafted   in   1967   by   Attorney    James    Hill,
provided:

    I, Charles MacLeish, of the Town of Caledonia,
    Columbia County, Wisconsin, do make, publish and
    declare this instrument as my Last Will and Testament.

    FIRST:   I direct the payment of my just debts and
    funeral expenses.

    SECOND:   All the rest, residue and remainder of my
    property I give, devise and bequeath to my beloved
    wife, Thelma MacLeish, to use the income and so much
    of the principal as she may need for her care, comfort
    and support during her lifetime, meaning and intending
    hereby to give to my wife, Thelma MacLeish, the life
    use of the income and so much of the principal as she
    may need.

    THIRD: At the death of my wife, Thelma, I direct that
    the remainder of my estate in existence at that time
    be placed in trust until my youngest child shall have
    completed his college education through a Bachelor's
    degree or indicated in writing to the trustee that he
    did not desire any further education, at which time
    said trust shall terminate and the remainder of my
    estate shall be divided equally between my four
    children.

    FOURTH:    I nominate and appoint my beloved wife,
    Thelma MacLeish, executrix of this my Last Will and
    Testament and request of her that she employ the firm
    of Hill, Miller & Quale in the settlement of my
    estate.

    IN WITNESS THEREOF, I have hereunto set my hand and
    seal this 1st day of February, 1967.




                                      4
                                                                          No.    2016AP2491



      ¶9    Attorney    Forrest      Hartmann,       a    former     partner       of    the
will's drafter, and subsequently a member of the Boardman firm,
handled the administration of the estate.                        He advised Thelma
MacLeish,    Charles's      wife,    to   claim     full      use    of    the    federal
estate tax marital deduction.
      ¶10   Thelma followed Attorney Hartmann's advice and treated
all   the   assets     of   Charles's       estate       as   though       they    passed
directly to her.       She also claimed a federal estate tax marital
deduction for those assets.
      ¶11   The effect of this action was that Charles's estate
was not subject to estate tax in 1984.                   Instead, the assets that
had been in Charles's estate would be subject to estate tax at

the time of Thelma's death.
      ¶12   In February of 2008, Thelma died.                  As a result of the
administration   of Charles's         estate twenty-four              years      earlier,
Thelma's    estate     included     those     assets      that      had    passed       from
Charles's estate to Thelma.           Thelma's estate incurred a federal
estate tax of $261,343.5

      ¶13   Dissatisfied      with    the     tax   that      had    been       levied   on
Thelma's estate and with the additional probate expenses, the
MacLeish    children    brought      suit     for   legal     malpractice         against




      5Thelma was a good steward of the funds that had been in
Charles's estate.    The complaint alleges that at the time of
Charles's death, his estate was valued at approximately
$608,000.     At Thelma's death, the amount had grown to
approximately $2.7 million.


                                          5
                                                                           No.    2016AP2491



Boardman.        They asserted that the tax and expenses would have
been avoided if the estate had been administered differently.
     ¶14     Specifically, the MacLeish children alleged that there
would have been no estate tax if, in 1984, a trust had been
imposed over Charles's assets.                    In their complaint, they allege
that "the will of Charles MacLeish should have been construed to
create   a   trust       for    the    benefit      of     Thelma    MacLeish      for   her
lifetime,     with       a   remainder       to    the     four    plaintiffs      in    this
action."      They further allege that absent such a trust, "the
property in which these plaintiffs had a remainder interest was
delivered to Thelma MacLeish. . . . The estate was probated as
though     the     plaintiffs       had   a       future       interest    for    Wisconsin

Inheritance Tax purposes, but treated for federal taxes as if
the property were devised to Thelma MacLeish absolutely (instead
of an interest in a trust or other limited interest) and free of
any trust or ownership interest of these plaintiffs."
     ¶15     The     complaint         additionally            detailed    the     MacLeish
children's        view       that     Boardman's         method     of     administration

"wasted"     Charles's         unified    credit      and       resulted    in    "entirely
avoidable" estate tax on Thelma's estate.                          Accordingly, in the
MacLeish children's estimation, the tax and additional expenses
incurred     on     Thelma's        estate    was        the    result     of    Boardman's
negligent administration of Charles's estate.
     ¶16     Moving for summary judgment, Boardman contended that
Charles's will unambiguously does not call for the creation of a




                                              6
                                                                  No.   2016AP2491



trust.6     It argued that Attorney Hartmann did just as the will
instructs       and    that   Charles's       testamentary     intent   was    not
thwarted by Attorney Hartmann's administration of the will.                    As
a result, Boardman asserted that the MacLeish children cannot
maintain    a    legal     malpractice    claim     pursuant    to    Auric,   111

Wis. 2d 507.
     ¶17    The circuit court agreed and granted summary judgment
to Boardman.          Applying the rule that "a third-party beneficiary
of a will may maintain a legal malpractice action for negligence
against    an    attorney     only   where the      beneficiary can show the
attorney's       actions       thwarted       the   decedent's       testamentary
intent[,]" it concluded that Charles's intent was not thwarted.

     ¶18    In the circuit court's view, Charles's will "did not
create a trust as a matter of law, nor did he intend to create a
trust."     The circuit court observed that the MacLeish children
"carry     the    burden      of     presenting     evidence     that    Charles'
testamentary intent was thwarted before their negligence claim




     6 Prior proceedings at the circuit court and court of
appeals are not relevant to the determination before us. Before
the summary judgment motion that is the subject of this appeal
was filed, the circuit court granted summary judgment to
Boardman, determining that the MacLeish children did not present
sufficient evidence of damages to raise a genuine issue of
material fact on this element of their negligence cause of
action.   The court of appeals reversed, concluding that there
was a genuine factual dispute on damages.         MacLeish, No.
2014AP575, unpublished slip op., ¶2.       After remand to the
circuit court, Boardman again moved for summary judgment motion,
filing the motion we address here.


                                          7
                                                                     No.      2016AP2491



can be presented to a trier of fact.                  This they have failed to
do."
       ¶19    The   MacLeish      children       appealed,   and    the       court   of
appeals affirmed.          It framed its analysis by assuming without
deciding that the Auric exception to attorney nonliability is

applicable not only to the negligent drafting of a will but to
the negligent administration of a decedent's estate where the
alleged      negligence    thwarts    the    decedent's      clear       testamentary
intent.       MacLeish     v.   Boardman     &    Clark   LLP,     No.    2016AP2491,
unpublished slip op., ¶10 (Wis. Ct. App. Mar. 15, 2018).
       ¶20    Applying     this    assumption,        the    court       of     appeals
concluded that "Charles's will did not create a trust, as argued

by     the   MacLeish     siblings,    and       therefore   by    definition         the
attorney's failure to read the will as creating a trust could
not have thwarted any clear intent of Charles."                      Id., ¶13.         It
determined that the MacLeish children can point to no "language
in the will [that] manifests an intent by Charles that a trustee
be appointed, that the assets of Charles's estate be held by a
trustee for the benefit of Thelma, or that enforceable duties
with respect to those assets be imposed upon a trustee."                           Id.,
¶16.
                                        II
       ¶21    We are asked to review whether the MacLeish children
have standing to bring this legal malpractice action against
Boardman.       A determination of standing presents a question of
law reviewed independently of the determinations rendered by the


                                         8
                                                                               No.    2016AP2491



circuit court and court of appeals.                           State v. Popenhagen, 2008

WI 55, ¶23, 309 Wis. 2d 601, 749 N.W.2d 611.
       ¶22       We also examine the court of appeals' determination
that       the   circuit      court      properly       granted      summary    judgment      to
Boardman         on    the   ground       that    the    MacLeish      children        did   not
establish that Charles's clear testamentary intent was thwarted.
We    review      a    summary       judgment         decision      independently       of   the
determinations           rendered        by   the      circuit      court    and     court    of
appeals, applying the same methodology as the circuit court.
SECURA Ins. v. Lyme St. Croix Forest Co., LLC, 2018 WI 103, ¶15,
384        Wis. 2d 282,        918       N.W.2d 885.               Summary     judgment       is
appropriate where there is no genuine issue as to any material

fact and the moving party is entitled to judgment as a matter of
law.       Id.
       ¶23       In our review, we interpret Charles's will.                          When the
facts are undisputed, the interpretation of a will is a question
of law that we review without deference to the circuit court or
court       of    appeals.              McCarville       v.     McWilliams         (Matter   of
McWilliams'           Estate),     78    Wis. 2d 328,         335    n.5,    254     N.W.2d 277
(1977).
                                                 III
       ¶24       We begin by addressing the legal standard for standing
of     a    non-client        to      bring      suit     against       an     attorney      for
malpractice.           In doing so, we consider the MacLeish children's
invitation to adopt the Restatement (Third) of the Law Governing
Lawyers § 51.            We further consider whether the Auric exception
to     nonliability          may   be     applied        to    a    claim    for      negligent
                                                  9
                                                                                 No.     2016AP2491



administration        of       an    estate.             Finally,   we     apply       our   chosen
standard to the facts of this case.
                                                    A
       ¶25   The MacLeish children attempt to bring suit against
Boardman,         which     they         allege      negligently         administered          their
father's estate.               Charles, and not the MacLeish children, was
Boardman's client.
       ¶26   Generally,             an   attorney         cannot    be    held     liable         to    a
third    party      for     any      act      committed         within    the    scope       of    the
attorney-client relationship.                        Yorgan v. Durkin, 2006 WI 60,

¶27, 290 Wis. 2d 671, 715 N.W.2d 160 (citations omitted); Green
Spring Farms v. Kersten, 136 Wis. 2d 304, 321, 401 N.W.2d 816

(1987).       Stated differently, "only an attorney's clients may
normally     sue     that        attorney       for       malpractice."           Beauchamp            v.
Kemmeter, 2001 WI App 5, ¶7, 240 Wis. 2d 733, 625 N.W.2d 297.
       ¶27   This         rule      serves        to      protect    the        attorney-client
relationship.             To     extend        an      attorney's        liability      to     third
parties not in privity with the attorney may create damaging
effects      on     the     defendant          attorney's          relationship         with       the
client.      Green Spring Farms, 136 Wis. 2d at 329.                              "That is, if
an attorney must be responsible not only to his or her own
client but also to a third-party nonclient, a potential conflict
of    interest      may    be       inevitable,          thus    impairing       an    attorney's
ethical obligations to represent his or her own client zealously
within the bounds of the law."                      Id.
       ¶28   However, the general rule is not without exceptions.
See    Newhouse      by     Skow         v.   Citizens       Sec.    Mut.       Ins.    Co.,       176
                                                    10
                                                                        No.    2016AP2491



Wis. 2d 824, 841, 501 N.W.2d 1 (1993) (explaining that "the well
established rule of law in Wisconsin is that absent fraud or

certain public policy considerations, an attorney is not liable
to   third   parties   for   acts    committed       in    the    exercise       of    his
duties as an attorney") (emphasis added).                        In certain estate
planning matters, this court has carved out a limited exception.
Beauchamp, 240 Wis. 2d 733, ¶7; see Auric, 111 Wis. 2d at 509.
       ¶29   In Auric, the testator's attorney failed to have his
secretary sign the will as a witness, resulting in the will
being invalid.      Auric, 111 Wis. 2d at 510.              A beneficiary of the
invalid will brought a negligence claim against the attorney.
Id. at 511.

       ¶30   The circuit court ruled that the attorney could not be
liable because there was no privity between the beneficiary and
the attorney.       Id. at 511-12.         On bypass, this court reversed,
determining that "the beneficiary               of    a    will may maintain           an
action against an attorney who negligently drafted or supervised
the execution of the will even though the beneficiary is not in
privity with that attorney."           Id. at 509.
       ¶31   This   exception     to      the   general         rule     of    attorney
nonliability to non-clients provides for "one way to make an
attorney accountable for his negligence."                   Id. at 513.          "It is
consistent with and promotes this state's longstanding public
policy supporting the right of a testator to make a will and
have   its   provisions   carried      out."         Id.   at    514.         Therefore,
"[p]ublic    policy    supports     the    imposition       of    liability       on    an
attorney who acts negligently in drafting or supervising the
                                          11
                                                                        No.    2016AP2491



execution of a will resulting in a loss to a beneficiary named
therein."    Id.

      ¶32   The Auric exception is a narrow one.                         Tensfeldt v.
Haberman, 2009 WI 77, ¶72, 319 Wis. 2d 329, 768 N.W.2d 641.                           It
is    properly     applied    when    "there    is     no    question         that    the
decedent's       intent      was     thwarted    due        to     the        attorney's
negligence."       Id.    "In these cases, if the court did not allow
the third party beneficiaries to bring suit, there would be no
one    to    vindicate       the   client's     expectation             of    competent
representation because by definition, the client is deceased."
Id.    Accordingly, to establish third party beneficiary standing,
"[t]he third party beneficiary must be able to establish that

the attorney's failure thwarted the decedent's clear intent."
Id., ¶73 (citing Auric, 111 Wis. 2d at 513).
      ¶33   The    MacLeish    children      argue   that        this    court    should
abandon the Auric exception to attorney nonliability to non-
clients.     They instead urge this court to adopt the Restatement
(Third) of the Law Governing Lawyers § 51 to control standing to
bring a legal malpractice claim.
      ¶34   Entitled "Duty of Care to Certain Nonclients," § 51 of
the Restatement provides:

      For purposes of liability under § 48,[7] a lawyer owes
      a duty to use care within the meaning of § 52[8] in
      each of the following circumstances:

      7Restatement (Third) of the Law Governing Lawyers                              § 48
(2000),   denominated   "Professional Negligence——Elements                            and
Defenses Generally," provides:

                                                                             (continued)
                                        12
                                                      No.   2016AP2491


    (1)   to a prospective client, as stated in § 15;

    (2)   to a nonclient when and to the extent that:

          (a)   the    lawyer   or    (with    the     lawyer's
                acquiescence) the lawyer's client invites
                the nonclient to rely on the lawyer's
                opinion   or   provision    of   other    legal
                services, and the nonclient so relies; and

          (b)   the nonclient is not, under applicable tort
                law, too remote from the lawyer to be
                entitled to protection;

    (3)   to a nonclient when and to the extent that:

          (a)   the lawyer knows that a client intends as
                one of the primary objectives of the
                representation that the lawyer's services
                benefit the nonclient;

          (b)   such a duty would not significantly impair
                the lawyer's performance of obligations to
                the client; and

          (c)   the absence of such      a duty would make
                enforcement of those     obligations to the
                client unlikely; and



    In addition to the other possible bases of civil
    liability described in §§ 49, 55, and 56, a lawyer is
    civilly liable for professional negligence to a person
    to whom the lawyer owes a duty of care within the
    meaning of § 50 or § 51, if the lawyer fails to
    exercise care within the meaning of § 52 and if that
    failure is a legal cause of injury within the meaning
    of § 53, unless the lawyer has a defense within the
    meaning of § 54.
    8  Section 52 of the Restatement (Third) of the Law Governing
Lawyers, entitled "The Standard of Care," sets forth in relevant
part:   "(1) For purposes of liability under §§ 48 and 49, a
lawyer who owes a duty of care must exercise the competence and
diligence    normally   exercised    by   lawyers    in   similar
circumstances."


                                 13
                                                                        No.     2016AP2491


     (4)   to a nonclient when and to the extent that:

           (a)      the lawyer's client is a trustee, guardian,
                    executor, or fiduciary acting primarily to
                    perform similar functions for the nonclient;

           (b)      the lawyer knows that appropriate action by
                    the lawyer is necessary with respect to a
                    matter    within   the    scope   of    the
                    representation to prevent or rectify the
                    breach of a fiduciary duty owed by the
                    client to the nonclient, where (i) the
                    breach is a crime or fraud or (ii) the
                    lawyer has assisted or is assisting the
                    breach;

           (c)      the nonclient is not               reasonably       able     to
                    protect its rights; and

           (d)      such a duty would not significantly impair
                    the performance of the lawyer's obligations
                    to the client.
     ¶35   The    MacLeish      children       contend    that     the    Restatement
presents   a   better       approach    than    the    well-established          general
rule of nonliability and the Auric exception.                      They argue that
broad immunity for attorneys from claims by non-clients is bad
public   policy.        In    their    view,    the     Restatement       provides       a
workable standard that narrows such immunity.

     ¶36   Adopting the Restatement as the MacLeish children urge
would    significantly        change     the     general     rule        of     attorney
nonliability     to   non-clients.         In    the     context    of        this    case,
adopting the MacLeish children's position would result in the
elimination    of     the    specific    requirement       that     a    third       party
beneficiary    demonstrate       that    the    testator's       clear        intent    was
thwarted in order to proceed with a legal malpractice claim.




                                         14
                                                         No.    2016AP2491



      ¶37   We decline to displace the Auric line of cases and

replace it with the Restatement (Third) standard.              There are
several reasons for this determination.9
      ¶38   First, the Auric exception and cases interpreting it
are grounded in the constitutional right to make a will and have
it   carried   out according   to   the testator's   intentions.      See
Auric, 111 Wis. 2d at 513.     Extending or rewriting the exception
"presents a considerable risk that an attorney would be held
liable, not for thwarting testator intentions, but for properly


      9We further observe that our rejection of the Restatement
(Third) of the Law Governing Lawyers § 51 is not out of step
with the determinations of courts in our sister states.     The
Restatement has not been widely adopted, although few states
have squarely addressed the issue.

     Some   states  have   expressly   declined   to  adopt  the
Restatement. See Stewart Title Guar. Co. v. Sterling Sav. Bank,
311 P.3d 1, ¶14 n.2 (Wash. 2013); see also Chem-Age Indus., Inc.
v. Glover, 652 N.W.2d 756, ¶¶33-35 (S.D. 2002) (recognizing that
the Restatement is not binding and concluding that "even if we
were to recognize the third party beneficiary exception,
plaintiffs have brought forth insufficient evidence to invoke it
here"). Arizona, on the other hand, has explicitly adopted the
Restatement formulation.    Paradigm Ins. Co. v. Langerman Law
Offices, PA, 24 P.3d 593, ¶29 (Ariz. 2001) (en banc).

     Others have looked to the Restatement for guidance or
support, see Moore v. Anderson Zeigler Disharoon Gallagher &
Gray, 135 Cal. Rptr. 2d 888, 897 (Cal. Ct. App. 2003) (stating
that the court's conclusion is "reinforced" by the Restatement),
or have articulated that the Restatement is correct in factual
situations significantly different from that presented here.
Pedersen v. Barnes, 139 P.3d 552, 557 (Alaska 2006) (agreeing
with one of the parties "that section 51 of the Restatement
(Third) of the Law Governing Lawyers articulates the correct
standard for determining the circumstances in which a guardian's
lawyer owes a duty to the guardian's ward").


                                    15
                                                                  No.     2016AP2491



carrying them out."         Beauchamp, 240 Wis. 2d 733, ¶18.              Adopting

the Restatement would unmoor the exception to nonliability from
its constitutional foundation and potentially open liability of
attorneys to third parties in a variety of contexts beyond the
facts of this case.
     ¶39    Second,   when    presented     with    the     opportunity    in    the
past, we have been reluctant to expand attorney liability to
non-clients in the estate planning context.                    For example, in
Tensfeldt we concluded that "[e]xtending the Auric exception to
attorneys who give negligent advice stretches the exception too
far."     Tensfeldt, 319 Wis. 2d 329, ¶77.               The court was explicit
in its instruction that the Auric exception "is a narrow one."

Id., ¶72.
     ¶40    The court of appeals has correctly followed suit.                    For
example, in Beauchamp, it favored narrow attorney liability by
determining that      "third parties        may    not    maintain    a cause     of
action for malpractice against the drafting attorney unless they
are named in an executed or unexecuted will or similar estate
planning document."         Beauchamp, 240 Wis. 2d 773, ¶9; see also
Anderson by Smithson v. McBurney by Stebnitz, 160 Wis. 2d 866,
872-73, 467 N.W.2d 158 (Ct. App. 1991).
     ¶41    Third,    the    Auric   standard      is     consistent    with     the
ethical duties of estate planning attorneys.                   As the court of
appeals    in   Beauchamp    observed,      maintaining      narrow     limits    on
attorney liability to third parties "ensures that attorneys face
fewer     conflicts   of    interest   in     estate       planning.       Holding
attorneys accountable to a nebulous class of third parties who
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are   likely     to    be    more         concerned         with    their     own    hopes    of
inheritance than testator intent further compromises the duty an
attorney owes to the client."                   Beauchamp, 240 Wis. 2d 733, ¶19.

      ¶42   Accordingly,             we     reject          the     MacLeish        children's
invitation to adopt the Restatement (Third) of the Law Governing
Lawyers     § 51.         The    Auric          exception         remains     the   operative
standard.
                                                 B
      ¶43   Having        determined        that       the    Auric    exception       is    the
operative       standard,       we    turn       now         to     examine     whether      the
exception        applies        to        the        precise        claims      made       here.
Specifically, we must determine whether the narrow exception can

be applied to the alleged negligent administration of a will in
addition to its drafting and execution.
      ¶44   As      the     court     of        appeals       observed,       we    have     not
previously addressed whether the Auric exception allows for a
third   party     beneficiary         to     bring      a    legal    malpractice       action
against an attorney who negligently administers an estate, as
opposed to an attorney who negligently drafts a will.                                MacLeish,
No. 2016AP2491, unpublished slip op., ¶10.                              However, for the
duration of this case, both parties, the circuit court, and the
court of appeals have seemingly operated under the assumption
that it does or should apply.                     We now take this opportunity to
clarify that the Auric exception applies to a claim that an
attorney negligently administers an estate.
      ¶45   Our determination is supported by both the language of
Auric     and    the      public      policies         on     which    it     is     premised.
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Specifically, the Auric court wrote that "[i]n this state, there

is a constitutional right to make a will and to have it carried
out    according          to    the     testator's               intentions."             Auric,     111
Wis. 2d at 513 (emphasis added); see Biart v. First Nat'l Bank
of    Madison       (In        re    Ogg's     Estate),             262       Wis. 181,      186,     54
N.W.2d 175 (1952).                  "This right reflects a strong concern that
people      should    be        as    free    as     possible            to    dispose       of    their
property upon their death."                   Auric, 111 Wis. 2d at 513.
       ¶46    The constitutional right to make a will and have it
carried out according to the testator's intentions is implicated
by the administration of a will just as it is by the will's
drafting.       Accordingly, the same public policies that drove the

Auric decision apply with equal force here.                                       See Auric, 111
Wis. 2d at 514 ("It is consistent with and promotes this state's
longstanding public policy supporting the right of a testator to
make a will and have its provisions carried out.").
       ¶47    We emphasize, however, that the strictures recognized
in    Tensfeldt      apply          equally    to       a       malpractice      claim       based    on
negligent      administration            as     to          a    claim    based       on     negligent
drafting.       Namely, "[t]he third party beneficiary must be able
to establish that the attorney's failure thwarted the decedent's
clear intent."        Tensfeldt, 319 Wis. 2d 329, ¶73.
       ¶48    We therefore conclude that the narrow Auric exception
to    the    rule    of    nonliability         of          an    attorney       to   a     non-client
applies to the administration of an estate in addition to the
drafting and execution of a will.                               That is, a non-client who is
a named beneficiary in a will has standing to sue an attorney
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for    malpractice         if    the   beneficiary      can     demonstrate        that    the
attorney's negligent administration of the estate thwarted the
testator's clear intent.
                                               IV
       ¶49     Having       determined         that    the      Auric       exception      is

applicable to claims of negligent administration of an estate,
we    turn    next    to    apply      Auric     to   the    facts     of   this    case   to
determine if the MacLeish children can proceed with their claim
against Boardman despite their status as non-clients.
       ¶50     In order to proceed with their claims pursuant to the
Auric    exception,        the    MacLeish       children      must    demonstrate        that
Charles's clear testamentary intent was thwarted by Boardman's

alleged negligence.              See supra, ¶48; Tensfeldt, 319 Wis. 2d 329,
¶73.      Stated      differently,         the      proper    threshold       question     is
whether       the    third       party     beneficiaries,            here   the    MacLeish
children, are attempting to stand in for the deceased testator
to    ensure    that       his    testamentary        intent     is    fulfilled.          See
Tensfeldt, 319 Wis. 2d 329, ¶72.
       ¶51     The     MacLeish          children      contend         that       Boardman's
negligent      administration of            Charles's will thwarted                Charles's
testamentary intent.              Their complaint alleges that "the will of
Charles MacLeish should have been construed to create a trust
for the benefit of Thelma MacLeish for her lifetime, with a
remainder to the four plaintiffs in this action."                             They further
allege       that    Boardman      was    negligent         "[f]or    probating      Charles
MacLeish's Estate without setting up such a trust, though the
same was suggested by the language of the will . . . ."                             Because
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no   trust   was    imposed,       they   argue,      substantial        and   avoidable
estate tax was paid from Thelma's estate and additional probate
expenses were incurred.
       ¶52   Resolving      the    question      of    whether      Charles's      clear
testamentary       intent    was    thwarted     requires     the    examination      of
Charles's will to determine whether it requires the imposition
of a trust.         Our aim in construing a will is to determine the
testator's intent.          Breese v. Bennett (In re Breese's Estate), 7

Wis. 2d 422, 425, 96 N.W.2d 712 (1959).                      The best evidence of
the testator's intent is the language of the document itself.
Madison Gen. Hosp. Med. & Surgical Found., Inc. v. Volz (In re
Ganser's Estate), 79 Wis. 2d 180, 187, 255 N.W.2d 483 (1977);

Caflisch v. Staum (In re Estate of Kuhn), 2000 WI App 113, ¶6,
235 Wis. 2d 210, 612 N.W.2d 385 (citation omitted).                            When the
will   is    unambiguous,      there      is    no    need   to   look     further    to
determine the intent of the testator, as it is clearly stated in
the will.     Id.
       ¶53   The formation of a trust requires three elements:                       (1)
trustees who hold property and are subject to equitable duties
to   deal    with    the    property      for   the    benefit      of    others;    (2)
beneficiaries to whom the trustees owe these equitable duties;
and (3) trust property that is held by the trustees for the
beneficiaries.        Wisconsin Med. Soc'y, Inc. v. Morgan, 2010 WI
94, ¶62, 328 Wis. 2d 469, 787 N.W.2d 22 (citing Sutherland v.
Pierner, 249 Wis. 462, 467, 24 N.W.2d 883 (1946)).
       ¶54   "[I]n order to create a trust the intention of the
testator must be manifest and mandatory."                    Paine v. Shero (In re
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                                                                     No.    2016AP2491



Doe's Will), 192 Wis. 333, 335, 212 N.W. 781 (1927); see also

Otjen v. Frohbach, 148 Wis. 301, 308, 134 N.W. 832 (1912) ("The
intention   to    create    a   trust   must    be   clear,    and    the    writing
employed     must      be     reasonably       certain    in      its       material
terms . . . .").        "No     trust   is     created   unless       the    settlor
manifests    an   intention     to   impose     enforceable     duties . . . ."
Wilson v. Dixon (In re Wadleigh's Estate), 250 Wis. 284, 291, 26
N.W.2d 667 (1947) (citation omitted).
      ¶55   The second paragraph of Charles's one-page will is the
relevant portion for purposes of this analysis.                It provides:

      All the rest, residue and remainder of my property I
      give, devise and bequeath to my beloved wife, Thelma
      MacLeish, to use the income and so much of the
      principal as she may need for her care, comfort and
      support during her lifetime, meaning and intending
      hereby to give to my wife, Thelma MacLeish, the life
      use of the income and so much of the principal as she
      may need.
      ¶56   As the court of          appeals    did, we   find Schomberg v.
Gaenslen    (In   re   Zweifel's     Will),    194   Wis. 428,       216    N.W. 840
(1927), instructive to the situation at hand.                 The will at issue

in   Zweifel provided in relevant part               that property would           be
devised to the testator's wife as follows:

      for her use and benefit, with full power and authority
      to sell, convey and dispose of absolutely in fee any
      part or all of my real or personal property, or both,
      at such price and consideration and upon such terms
      and conditions as she may see fit and proper, vesting
      in my wife, Emilie Zweifel, full power and authority
      to execute deed or deeds of conveyance with or without
      covenants    of   warranty   to   all    intents   and
      purposes . . . .



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Id. at 431.                 The court interpreted this will to "give[] the

widow       absolute          power       of   disposition,        not    accompanied        by     any
trust."          Id. at 436.
       ¶57        Charles's will is very similar to the will at issue in
Zweifel.          By its plain language, the will gave property to the
testator's wife without restrictions, i.e. the wife had absolute
power       of    disposition             over   the     testator's       assets        during      her
lifetime.          The Zweifel court based its conclusion that the will
did not call for the imposition of a trust on the fact that the
will    called              for    the     devisee's       exclusive          control      over     the
testator's assets.                 Id.     We do the same here.
       ¶58        It is true that the absence of the word "trust" from

the    second          paragraph          of   Charles's        will     is    not    dispositive.
Otjen, 148 Wis. at 308.                        However, the language of the will is
unambiguous——it does not reflect an intent to create a trust,
regardless             of     what       the    MacLeish        children's       expectation         or
"suggestion" may be.                     The language cannot be construed to compel
the creation of a trust either as a matter of administration or
by    its    explicit             text.        Instead    of     appointing       any      person    to
oversee          his    assets,          directing       that    his     assets      be    held     for
Thelma's benefit and imposing enforceable duties, Charles's will
gives Thelma absolute power over the disposition of his assets.
In other words, the will provides that Charles's property be
devised to Thelma's exclusive control with no strings attached.
       ¶59        Further, as the court of appeals correctly observed,
"[t]he word 'trust' appears in the will, but only and clearly in
connection with events postdating Thelma's passing."                                       MacLeish,
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No. 2016AP2491, unpublished slip op., ¶16.                            Yet the children
contend that a trust should have been imposed at the time of
Charles's passing, twenty-four years prior to Thelma's death.
       ¶60    In the third paragraph, the will states:

       At the death of my wife, Thelma, I direct that the
       remainder of my estate in existence at that time be
       placed in trust until my youngest child shall have
       completed his college education through a Bachelor's
       degree or indicated in writing to the trustee that he
       did not desire any further education, at which time
       said trust shall terminate and the remainder of my
       estate shall be divided equally between my four
       children.
The use of the word "trust" in the third paragraph of the will
indicates that Charles was aware of the mechanism, yet chose not
to   employ       it   in   the   second       paragraph.          "[T]he    inclusion         of
language      respecting      certain      heirs      and    the    omission        of    it   in
respect to others manifest[s] a testamentary intention to make
distinction between them."                Zens v. Ferdinand (In re Ferdinand's

Estate),      7    Wis. 2d 577,         583,   97    N.W.2d 414      (1959);        see     also
Rosenbaum v. Bishop Tr. Co. (In re Friend's Will), 259 Wis. 501,
508-09, 49 N.W.2d 423 (1951).
       ¶61    Because       the     language         of     Charles's        will        devises
property to Thelma without restrictions, Boardman's failure to
impose a trust did not thwart the testator's clear intent.                                     To
determine otherwise would be to potentially hold Boardman liable
"not    for       thwarting       testator      intentions,         but      for     properly
carrying them out."           Beauchamp, 240 Wis. 2d 733, ¶18.
       ¶62    Accordingly,         we     determine       that      Charles        MacLeish's
clear    testamentary         intent      was       not   thwarted      by    any        alleged

                                               23
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negligence on the part of Boardman.                    As a result, we conclude
that the MacLeish children's claim against Boardman for legal
malpractice was properly dismissed.
                                             V
        ¶63    In sum, we reject the MacLeish children's invitation
to adopt the Restatement (Third) of the Law Governing Lawyers
§ 51.    The Auric exception remains the operative standard.

        ¶64    We further conclude that the narrow Auric exception to
the rule of nonliability of an attorney to a non-client applies
to the administration of an estate in addition to the drafting
and execution of a will.                That is, a non-client who is a named
beneficiary         in    a    will   has   standing      to    sue   an    attorney        for

malpractice         if        the   beneficiary     can        demonstrate         that     the
attorney's negligent administration of the estate thwarted the
testator's clear intent.
        ¶65    Applying Auric to the facts of this case, we determine
that     Charles         MacLeish's     clear     testamentary          intent      was     not
thwarted by any alleged negligence on the part of Boardman.                                  As
a result, we conclude that the MacLeish children's claim against
Boardman for legal malpractice was properly dismissed.
        ¶66    Accordingly, we affirm the decision of the court of
appeals.
        By    the   Court.—The        decision    of   the      court      of     appeals    is
affirmed.




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