O’Donnell v. Smith, 234 S.W.3d 135 (Tex. App.—San Antonio 2007), aff'd, 286 S.W.3d 417 (Tex. 2009).

Other Estate Planning Matters



Executor sued Decedent’s former Attorneys for malpractice in advising Decedent in his capacity as the executor of his wife’s estate. The lower court ruled in favor of Attorneys basing its judgment on the fact that Decedent’s executor and the estate lacked privity of contract with Attorneys. The Supreme Court of Texas granted a petition for review without reference to the merits, vacated the lower court’s judgment, and remanded so the lower court could take into account the holding in Belt v. Oppenheimer, Blend, Harrison & Tate, Inc., 192 S.W.3d 780 (Tex. 2006).

The court began its analysis by holding that Belt was not limited to estate planning malpractice actions. Accordingly, the court explained that Executor stepped into Decedent’s shoes and could bring whatever malpractice action Decedent could have brought while alive, even if it did not involve the planning of Decedent’s estate. The court relied on language in the Belt decision which provided that “legal malpractice claims alleging pure economic loss survive in favor of a deceased client’s estate.” The court then examined the evidence and concluded that although there was no evidence that Attorneys acted with malice or breached fiduciary duties, there was a triable issue as to what damages were attributable to Attorneys’ acts. The court remanded the case to the trial court to determine whether Attorneys’ acts amount to malpractice.

Moral: A decedent’s claim for legal malpractice, regardless of whether it involves the planning of the decedent’s estate or some other legal matter, survives and thus may be brought by the decedent’s personal representative.