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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

JULIE REZNICK, a married woman on                                                 jr-

behalf of her separate estate; and CAROL              No. 74607-3-
LORENZEN, and unmarried woman,
                                                       DIVISION ONE
                     Appellants,
                                                       UNPUBLISHED OPINION
              v.



LIVENGOOD, ALSKOG, PLLC, a
professional limited liability company f/k/a
 LIVENGOOD, FITZGERALD & ALSKOG
 PLLC; and HUGH W. JUDD and JANE
 DOEJUDD,

                     Respondents.                      FILED: December 27, 2016


      Appelwick, J. — A testator's sisters assert a malpractice claim against the

testator's estate planning attorney. The sisters claim they were owed a duty as

intended beneficiaries of the attorney's services. Counsel argued that he owed no

duty to the sisters because they were not his clients, but merely intended

beneficiaries under the will.   The trial court dismissed on summary judgment.

Under the applicable multifactor test, even assuming the sisters were intended

beneficiaries of the attorney's services, counsel owed them no duty. We affirm.
No. 74607-3-1-2




                                       FACTS


       Hugh Judd was testator Ellen Lorenzen's longtime estate planning attorney.

Ellen1 was diagnosed with cancer in the 1990s. Judd assisted Ellen in creating a

will in 2005. That will split Ellen's residuary between two nonfamily members. That

will also gave a $10,000 gift to each of Ellen's two sisters, Carol Lorenzen and

Julie Reznick.


       Ellen's condition began rapidly deteriorating in 2012.       On February 16,

2012, Carol e-mailed Judd. She told him that Ellen was not well and that Ellen

wanted to speak with Judd about her will. Judd telephoned Ellen at the hospital

that night. During their conversation, Judd specifically asked if Ellen wanted to

revise the 2005 will so that her sisters would receive greater portions of her estate.

Ellen responded that she would have to think about it. They planned to meet in

person the next week to discuss.

       When Judd arrived to meet with Ellen, a nurse informed him that she had

only hours left to live. Ellen's sister Julie and her longtime neighbor, Anne Nogatch,

were present at that meeting. In their presence, Judd asked Ellen to squeeze his

hand if she wanted to revoke her 2005 will so that her sisters would split her entire

estate through intestate succession. Ellen squeezed Judd's hand.




        We use first names for the purposes of clarity. We intend no disrespect.
No. 74607-3-1-3




       Judd was unaware that, under Washington law, he could not destroy Ellen's

will outside of Ellen's presence.2 Ellen died that afternoon, and Judd had not yet

destroyed the will. Her prior will was therefore still in force.

       Ellen's sisters sued Judd for legal malpractice.        The trial court granted

Judd's motion for summary judgment.

                                    DISCUSSION


       Appellate courts review summary judgment orders de novo.              Owen v.

Burlington N. & Santa Fe R.R... 153 Wn.2d 780, 787, 108 P.3d 1220 (2005). All

facts and reasonable inferences must be considered in the light most favorable to

the nonmoving party. Clark v. Baines, 150 Wn.2d 905, 910-11, 84 P.3d 245

(2004). Summary judgment is warranted ifthere are no genuine issues of material

fact and the moving party is entitled to judgment as a matter of law. Van Nov v.

State Farm Mut. Auto Ins. Co.. 142 Wn.2d 784, 790, 16 P.3d 574 (2001).

       The elements of a typical legal malpractice claim are (1) an attorney-client

relationship, (2) the attorney's breach of the duty of care, (3) damage to the client,

and (4) proximate causation between the attorney's breach and the damage

incurred. Parks v. Fink, 173 Wn. App. 366, 376, 293 P.3d 1275 (2013). The trial

court ruled that the sisters could not maintain a claim for malpractice against Judd

because Judd owed them no duty.

       In this case, the attorney-client relationship element is notably missing

because the sisters were not Judd's client. However, in Trask v. Butler. 123 Wn.2d


2Under RCW 11.12.040(1) "A will, or any part thereof, can be revoked: . . . (b) By
being burnt, torn, canceled, obliterated, or destroyed ... by the testator or by
another person in the presence and by the direction of the testator."
No. 74607-3-1-4




835, 842-43 972 P.2d 1080 (1994), our Supreme Court carved out an exception

that allows plaintiffs to maintain legal malpractice claims even in the absence of an

attorney-client relationship. In Trask, the Court held that an attorney hired by a

personal representative does not owe estate beneficiaries a duty. jd. at 845. Trask

sets out a six factor balancing test to determine whether a nonclient can maintain

a malpractice action against an attorney, jd. at 842-43. Those factors are:

       1. The extent to which the transaction was intended to benefit the
          plaintiff;
       2. The foreseeability of harm to the plaintiff;
       3. The degree of certainty that the plaintiff suffered injury;
       4. The closeness of the connection between the defendant's
          conduct and the injury;
       5. The policy of preventing future harm; and
       6. The extent to which the profession would be unduly burdened by
            a finding of liability.

Id. The parties' arguments in this case focus on only the first, fifth, and sixth

factors.3

       We begin our analysis with the fifth and sixth Trask factors, because the
resolution of those factors controls the outcome here. When the fifth and sixth

factors are at issue, courts must weigh "the policy conflict between" them. See

Parks, 173 Wn. App. at 378.           This court thoroughly evaluated the policy

considerations arising from factors five and six in Parks.4 Jd at 378-87. In Parks,
a testator hired an attorney to fix a drafting error misidentifying a beneficiary in a

prior will that was drafted by a prior attorney. \j± at 368. But, the testator ultimately

      3Even though Judd did not effectively revoke the old will, we assume for
the moment that it was temporally possible to destroy it prior to Ellen's death.
The trial court did not reach issues of causation and neither do we.
       4 Parks is the only Washington case that the parties cite to support their
arguments on factors five and six.
No. 74607-3-1-5




did not execute the will prior to his death, jd. at 373. The nonclient plaintiff

received nothing under the valid earlier will, but would have received a distribution

from the estate had the client executed the subsequent will. jd. The nonclient

sued the decedent's estate planning attorney, arguing that the attorney should

have made a more timely effort to have the will executed, jd.

       Whether the attorney owed a duty to the nonclient turned on the resolution

of the fifth and sixth Trask factors.5 ]± at 378. Regarding those factors, the court

noted that "the majority of courts" addressing this issue have held that "an attorney

owes no duty of care to an intended will beneficiary to have the will executed

promptly." id. The court was chiefly concerned that, if the attorney owed a duty to

the nonclient, an attorney may be inclined to have a will hastily executed to benefit

the nonclient without the testator" 'sufficiently reflecting upon their estate planning

options.'" \± at 388 (emphasis omitted) (quoting Sisson v. Jankowiski, 148 N.H.
503, 509, 809 A.2d 1265 (2002)). After a thorough discussion of the law in other

jurisdictions, the court determined that this "risk of interfering with the attorney's
duty of undivided loyalty to the client exceeds the risk of harm to the prospective
beneficiary." 14 at 389. And, recognizing a duty could create an "irreconcilable
conflict of interest" that could compromise the "undeviating fidelity of the lawyer to

his client." Id. at 388. The court therefore declined to recognize a duty under those

facts. Id. at 389.




       5The first factor, whether Parks was an intended beneficiary of counsel's
services, was not before the court, but was assumed for purposes of the
decision. Parks, 173 Wn. App. at 378. We make the same assumption for
purposes of applying the fifth and sixth Trask factors.
No. 74607-3-1-6




       The court also addressed a possible policy counterargument: that absent a

duty to the beneficiaries, no party could hold the attorney liable for his or her

negligence. Id. at 388. In response, the court reasoned that:

       "U]ust as it would not do to award damages to a randomly selected
       bystander simply to bring home a message that the defendant and
       others like him or her should not be careless, so it would not do to
       make such an award, even to a rationally selected plaintiff, if in the
       circumstances the objective of deterrence is outweighed by
       countervailing policy considerations."

jdL at 388 n. 13.

       The sisters argue that Parks should not control because the plaintiffs in

Parks argued that the attorney failed to act promptly, but here the attorney failed

to correctly advise. They assert that Parks' policy concerns about compromising

loyalty to a client are therefore inapplicable.

       But, the negligence that the sisters allege caused them damage was in the

attorney's failure to effectuate Ellen's wishes. To effectuate Ellen's wishes Judd

needed to ensure the will was properly destroyed prior to her death. That failure

was the act of the alleged negligence. His mistaken belief that he could lawfully

destroy the will after her death was merely the reason for that failure. Had Judd

instead forgotten to tend to the lawful destruction of the will, the failure would have

been the same.


       Parks involved the alleged failure to see that a new testamentary plan was

implemented by failing to see the replacement will executed, jd., at 373. This case

involves the failure to see the new testamentary plan implemented by failing to see

that the old will was timely destroyed. In both this case and Parks, the plaintiff's
No. 74607-3-1-7




relationship to the attorney is the same: they are intended beneficiaries of the

testator's estate, not clients. The reasoning in Parks is equally persuasive here.

Its holding controls. Even reviewing the facts in the light most favorable to Ellen's

sisters, Judd owed them no duty.

       The sisters also argue that Stanqland v. Brock, 109 Wn.2d 675, 747 P.2d

464 (1987) requires us to rule in their favor. In Stanqland, the Supreme Court

addressed a nonclient's claim for malpractice when an attorney failed to advise a

testator that a real estate transaction would affect the nonclient's estate

distribution. ]d at 677-78. The Court briefly discussed duty: "beneficiaries of [a]

will are intended to benefit from the relationship between the testator and the

attorney drafting the will, because an integral purpose of drafting the will is to

provide for the beneficiaries." Id. at 681.

       But, the sisters' reliance on Stanqland is unpersuasive. First, Stanqland

predated Trask, and it therefore did not specifically analyze the framework as
announced by our Supreme Court in Trask. Stanqland, 109 Wn.2d at 675; Trask,
123 Wn.2d at 835. Second, the Stanqland Court ruled that the nonclient estate

beneficiaries could not sustain a claim. Stanqland, 109 Wn.2d at 685-86. We

therefore do not see how Stanqland requires us to find that the sisters can sustain

a claim here. Third, Stanqland addressed intended beneficiary status of the

plaintiffs, but it did not meaningfully analyze the policy concerns under the fifth and
sixth Trask factors that guide our analysis here. Stanqland 109 Wn.2d at 681-82.
       We hold that Parks controls. Trask factors five and six dictate that Judd

owed Reznick and Lorenzen no duty, even if they were intended beneficiaries of
No. 74607-3-1-8




his testamentary planning services to their sister, not merely intended beneficiaries

of the estate plan.

       We affirm.




WE CONCUR:




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