David MacLeish, Hayden MacLeish, Kay MacLeish and Robin MacLeish, Plaintiffs-Appellants-Petitioners,
Boardman & Clark LLP, Quale Hartmann, S.C., Continental Casualty Company and OneBeacon Insurance Company, Defendants-Respondents.
ARGUMENT: January 24, 2019
Circuit Court Dane County, L.C. No. 2012CV3621, Josann M.
OF DECISION OF THE COURT OF APPEALS Reported at 381 Wis.2d
471, 915 N.W.2d 455
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.
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.
WALSH BRADLEY, J.
The petitioners, collectively the MacLeish children,
seek review of an unpublished court of appeals decision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
administered their father's estate. 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 firm 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.
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.,
Ill. Wis.2d 507, 331 N.W.2d 325');">331 N.W.2d 325 (1983),  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 nonliability and apply it beyond claims of
negligent will drafting and execution to also encompass a
claim of negligent administration of an estate.
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.
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
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.
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.
Accordingly, we affirm the decision of the court of appeals.
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
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.
WITNESS THEREOF, I have hereunto set my hand and seal this
1st day of February, 1967.
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.
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.
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.
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,
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 Boardman. They asserted that the tax and expenses
would have been avoided if the estate had been administered
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."
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
Moving for summary judgment, Boardman contended that
Charles's will unambiguously does not call for the
creation of a trust. 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.
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.
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 can be presented to a trier of
fact. This they have failed to do."
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).
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
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 circuit court and court of appeals. State v.
Popenhagen, 2008 WI 55, ¶23, 309 Wis.2d 601, 749
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 ...