                         [J-61-2016][M.O. – Dougherty, J.]
                   IN THE SUPREME COURT OF PENNSYLVANIA
                                MIDDLE DISTRICT



ESTATE OF ROBERT H. AGNEW,                   :   No. 76 MAP 2015
MARGARET ALZAMORA, INDIVIDUALLY              :
AND AS EXECUTRIX OF THE ESTATE               :   Appeal from the Order of the Superior
OF ROBERT H. AGNEW, WILLIAM AND              :   Court at No. 2195 EDA 2014, dated
SHEILA HENNESSY, H/W, MARGARET               :   2/2/15, reconsideration denied 4/7/15,
HENNESSY, JAMES AND CHRISTINE                :   reversing the grant of summary
HENNESSY, H/W AND PAUL AND                   :   judgment of the Chester County Court
EILEEN JANKE, H/W                            :   of Common Pleas, Civil Division, at No.
                                             :   12-09300, dated 6/4/14 and remanding
             v.                              :
                                             :
                                             :
DANIEL R. ROSS, ESQUIRE, MEGAN               :   ARGUED: May 10, 2016
MCCREA, ESQUIRE AND ROSS &                   :
MCCREA, LLP                                  :
                                             :
APPEAL OF: DANIEL R. ROSS,                   :
ESQUIRE AND MEGAN MCCREA,                    :
ESQUIRE                                      :




                               CONCURRING OPINION


CHIEF JUSTICE SAYLOR                                   DECIDED: January 19, 2017

      I agree with the majority’s holding that, to maintain standing in an action against

an attorney for breach of contract in failing to perfect documents to reflect a client’s

testamentary intentions, intended third party beneficiaries must be identified in an

executed estate planning document. In this regard, I am persuaded by the public policy
rationale expressed by the majority.1 My main reservation with its opinion, however, is

that I am not convinced by some of the additional rationale upon which the majority

relies.2

       As a final observation, to the degree that some ambiguity may attend the

majority’s statement that an alleged beneficiary is required to forward an executed

testamentary document “expressly identifying him,” Majority Opinion, slip op. at 26

(emphasis added), my understanding of identification includes the express naming of

such a person, as well as the provision for “non-named beneficiaries.” Id. at 22 & n.12

(reasoning that such a term is inclusive of beneficiaries designated by reference to “my

children” or persons or entities to be ascertained following the testator’s death, rather

than persons completely omitted).




1
   See Majority Opinion, slip op. at 26 (citing the Court’s recognition in Guy v.
Liederbach, 501 Pa. 47, 62, 459 A.2d 744, 752 (1983), that the increased concern over
third party liability could interfere with the quality and expense of legal services rendered
to clients); accord Radovich v. Locke-Paddon, 41 Cal. Rptr. 2d 573, 580 (Cal. Ct. App.
1995) (reasoning that permitting third parties not mentioned in estate planning
documents to sue may impinge on an attorney’s duty of loyalty to the client, potentially
resulting in the exertion of “pressure on a client to complete and execute estate
planning documents summarily [for f]ear of liability to potential third party beneficiaries”
(citation omitted)).

2
  For example, I do not believe that the use of extrinsic evidence to adjudge the intent of
a decedent and his attorney is any more problematic in this context than it would be in
other similar settings in which intent may be proved through such evidence. Compare
Majority Opinion, slip op. at 25 (“The execution requirement and the bar on extrinsic
evidence act precisely to prevent courts from speculating regarding a testator’s intent
under such circumstances . . ..”), with In re Estate of Field, 953 A.2d 1281, 1288 (Pa.
Super. 2008) (permitting the use of extrinsic evidence to show that decedent intended
for an unsigned trust amendment to be effective).


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