# Ferguson v. O'Bryan > Indiana Court of Appeals · October 15, 2013 · 996 N.E.2d 428 URL: https://www.frixlaw.com/law-library/cases/7077553 ## Case - **Full name:** Martha FERGUSON, Anthony W. Schmitt, Rebecca Schmitt, Mary Meadows, Christopher Schmitt, Rosemary Schmitt, Jerry W. Shillington, Christina Aleman, Steven Shillington, Michael Joseph Schmitt, and Ken Jolly, Appellants-Plaintiffs v. Berton O'BRYAN, Appellee-Defendant - **Court:** Indiana Court of Appeals - **Decided:** October 15, 2013 - **Citations:** 996 N.E.2d 428; 2013 Ind. App. LEXIS 506; 2013 WL 5614102 - **Precedential status:** Published - **Opinion:** Dissent by Friedlander - **Judges:** Crone, Friedlander, Robb - **Cited by:** 3 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/7077553 ## Opinion text FRIEDLANDER, Judge, dissenting. In Walker v. Lawson, our Supreme Court held that a will-drafting attorney owed a duty to a listed beneficiary of the will “on the basis that the beneficiary is a known third party.” 526 N.E.2d 968, 968 (Ind.1988). We are now called upon to consider more precisely what an attorney is required to know in order to create a duty to a beneficiary. The Majority holds that it is sufficient if the attorney knows that the testator intends, at some future point, to create a list naming a group of unidentified individuals as beneficiaries. Because I believe more is required, I respectfully dissent. A brief review of the evolution of the law surrounding an attorney’s duty to a known third-party beneficiary of a will is helpful in this analysis. Privity was traditionally a prerequisite to the imposition of a duty in professional negligence cases. Nat’l Sav. Bank of Dist. of Columbia v. Ward, 100 U.S. 195, 200 , 25 L.Ed. 621 (1879) (noting that “the general rule is that the obligation of the attorney is to his client and not to a third party”); see also Webb v. Jarvis, 575 N.E.2d 992, 995 (Ind.1991) (noting that “[djuring the nineteenth century, the common law required privity in order to impose a duty of reasonable care”). Accordingly, the lack of privity between will-drafting attorneys and intended beneficiaries traditionally acted as a bar to the type of suit before us. In the oft-cited case of Ultramares Corp. v. Touche, 255 N.Y. 170, 179-80 , 174 N.E. 441 (1931), Justice Cardozo described the rationale behind the privity rule thusly: If liability for negligence exists, a thoughtless slip or blunder ... may expose [professionals] to a liability in an indeterminate amount for an indeterminate time to an indeterminate class. The hazards of business conducted on these terms are so extreme as to enkin-dle doubt whether a flaw may exist in the implication of a duty that exposes to these consequences. Justice Cardozo went on to note, however, that “[t]he assault upon the citadel of privity is proceeding these days apace. How far the inroads shall extend is now a favorite subject of juridical discussion.” Id. at 180 , 174 N.E. 441 ; see also Webb v. Jarvis, 575 N.E.2d at 995 (noting that the privity rule “has vanished evolutionarily during the twentieth century” and now “it is well-established that privity is not always required”). In Walker v. Lawson, our Supreme Court did not entirely scuttle the traditional privity rule in the context of negligent *435 will-drafting; rather, the Court articulated a limited exception to the rule based on the drafting attorney’s actual knowledge. See Beckom v. Quigley, 824 N.E.2d 420 (Ind.Ct.App.2005) (holding that Walker v. Lawson requires a will-drafting attorney to have actual knowledge of a third-party beneficiary). I believe this exception is consistent with the rationale supporting the traditional privity rule because it incorporates its own limitations on liability. Specifically, in the will-drafting context, a known beneficiary does not belong to an undetermined class; the potential plaintiffs are, by definition, known at the time the will is drafted. The attorney is aware of the potential plaintiffs and their potential injuries because the attorney has listed the beneficiaries, along with the testator’s intended bequests, in the will. Thus, the attorney is not exposed “to a liability in an indeterminate amount for an indeterminate time to an indeterminate class.” See Ultramares Corp. v. Touche, 255 N.Y. at 179 , 174 N.E. 441 . But here, the Relatives were not listed in the will. Instead, they were included on a list created by Linder after the execution of the will, and Linder could have added a potentially limitless number of unknown individuals to the list. Under these circumstances, the rationale underlying the exception for known beneficiaries disappears, and imposing a duty would expose the drafting attorney to precisely the type of unlimited liability the privity rule and the exception set forth in Walker v. Lawson were designed to prevent. Accordingly, I do not believe the Relatives fall within the category of known third parties contemplated by our Supreme Court in Walker v. Lawson. Moreover, I believe that there are additional reasons to be wary of any further relaxation of the privity rule in the context of attorney malpractice cases. This court has noted that if attorneys were required “to consider the risk of harm to unknown third persons before drafting a will in accordance with his client’s wishes, we would be forcing the attorney to weigh the welfare of unknown persons against the duty of care to his client.” Beckom v. Quigley, 824 N.E.2d at 428 . We also noted in Beckom v. Quigley that an attorney must be able to identify the persons directly affected by his or her services in order to undertake a proper duty of care toward them. Moreover, imposing a duty in favor of unidentified third parties would make it impossible for attorneys to identify potential conflicts of interest. Accordingly, I would hold, and indeed we have always held, that in order to qualify as a known third party, an intended beneficiary must be known and identified at the time the will is drafted. 8 Because the list on which the Relatives were identified was not created until after the will was drafted, they clearly do not fall within this category. For the same reason, I would reject the Relatives’ argument that O’Bryan owed them a duty because he ostensibly learned that they had been named on the list at some point after the will was drafted. The Relatives essentially argue that we should retroactively expand the class of individuals to whom a will-drafting attorney owes a duty based upon knowledge the attorney might subsequently obtain. But to do so would have the same effect as allowing liability even in the absence of such knowledge — O’Bryan would be exposed to liability to a potentially unlimited number of plaintiffs unidenti *436 fied to him at the time he drafted the will. For all of these reasons, I would affirm the trial court’s summary judgment order. . Because the question is not presented in this appeal, I would not reach the question of whether a duty would lie when beneficiaries are identified not by name, but by a class designation, for example, “next of kin.” --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/7077553. Public record. Not legal advice.