Legal Malpractice Action Against An Attorney Who Has Provided No Legal Services
Does a Son Have Privity to File a Legal Malpractice Action Against An Attorney Who Has Provided No Legal Services After His Father's Death ?
In Lutz v. Balch, Franklin App. No. 06AP-247, 2006 Ohio 4630, an attorney prepared a will and trust agreement for the parents of the plaintiff, their son. Each of the parents' revocable trusts became irrevocable upon their deaths.
The mother died, her will was admitted to probate, and the trust was administered for the benefit of the father.
The attorney then prepared, and the father executed, an updated will and an amended trust. the father died several months later, and his will was admitted to probate.
The son filed a malpractice action against the attorney with regard to her preparation of his parents' wills and trusts. the attorney filed a motion for summary judgment, which the trial court granted, concluding the son lacked the necessary privity to maintain a legal malpractice claim.
The Court affirmed the trial court's granting of summary judgment, relying upon the Ohio Supreme Court's decision in Simon, in which the court held that, in the absence of fraud, collusion, or malice, the potential beneficiary under a will cannot sue the testator's lawyer for legal malpractice in the drafting of the will because the beneficiary, a son, did not have a vested interest and was not in privity. Citing Simon, we concluded privity was likewise lacking in Lutz. Id., at P9.
The Court found that the son was only a potential beneficiary because his parents reserved the right to revoke or amend their trusts during their lifetimes. Because the mother's trust was administered for the benefit of the father, the son was still only a potential beneficiary until the death of his father, at which point the son's interest in his father's estate vested.
The attorney provided no legal services subsequent to the death of the husband, when the son had a vested interest. Thus, we determined the son lacked the necessary privity to maintain a legal malpractice action against the attorney. Id., at P11.