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Archive for the ‘Probate Law’ Category

In re: the Estate of Mary Elizabeth Reimer, incompetent, No. CA09-770.

In 2004, George Reimer petitioned for guardianship over his wife, Mary Elizabeth Reimer. The trial court found Mrs. Reimer incompetent and appointed Mr. Reimer as guardian over her person. Two years later, Mr. Reimer moved to change guardians, and Karen Hunter, Mrs. Reimer’s daughter, was appointed as guardian over Mrs. Reimer’s person and estate. In 2008, Mrs. Reimer moved to terminate the guardianship, arguing that she was not notified about the expansion of the guardianship to include her estate and that she no longer needed a guardian. Hunter filed an amended petition for appointment of herself as guardian of Mrs. Reimer’s person and estate. At a joint hearing, the trial court held that the amended petition cured any notice defects and that a guardianship of the person and estate was still needed. Hunter remained as guardian. After the hearing, Mrs. Reimer’s attorney, Frances Morris Finley, moved for attorney’s fees incurred on her behalf, and the trial court denied that motion.

Finley appealed the denial. The Arkansas Court of Appeals held that Finley had standing to appeal the order because she “has a pecuniary interest affected by the court’s disposition of the matter below.” The court then upheld the trial court’s ruling, noting that no Arkansas statute authorized an award of attorney’s fees under these circumstances.

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Howard v. Adams, No. CA08-1190.

Facts Relating to Bill Watkins

In the latter part of 1998, Odis and Mabel Howard visited attorney Bill Watkins to obtain estate-planning services. Watkins drafted (1) a revocable trust to hold all of Otis’s and Mabel’s property and (2) a deed transferring Odis’s forty-six-acre tract of land to the trust. The trust named Mabel as trustee and provided that the trust assets would pass to Gary Howard, Odis’s only child and Mabel’s stepson, upon the death of both settlors. The trust also provided that either settlor could revoke or amend the trust.

Otis never signed the deed or trust. By June 2000, he was suffering from Alzheimer’s disease. Gary asked Watkins to petition the court for temporary guardianship of Otis. The court granted the petition, and Gary was Otis’s legal guardian from June 19, 2000, until September 19, 2000.

After the temporary guardianship had expired, Otis’s family believed his death was imminent. Gary, Mabel, and Samantha (Gary’s daughter) met with Watkins, who advised Gary to sign the trust and deed as Otis’s guardian. Gary followed Watkins’s instructions and signed the documents, back-dating them to September 6, 2000, when he was still legal guardian for Otis. 

During this meeting, Gary, Mabel, and Samantha agreed to become co-trustees with equal authority, and Watkins agreed to revise the trust to reflect the co-trusteeship. Watkins, however, never advised Gary that, in the absence of the trust and deed, he stood to inherit all of Otis’s property by intestate succession, limited only by Mabel’s dower interest. Watkins also failed to advise Gary that his and Mabel’s interests were in conflict in regard to Otis’s property or that the trust gave Mabel the right to revoke or amend the trust.

Odis died on January 16, 2001, and Mabel subsequently amended the trust (1) to remove Gary as a co-trustee and (2) to limit his share to one-third of the trust’s assets with the remainder going to Samantha.

Facts Relating to Lauren Adams

Thereafter, Gary sought advice from attorney Lauren Adams, who entered into an oral agreement with Gary (1) to probate Otis’s estate, (2) to revoke the trust, and (3) to collect her attorney’s fees from Watkins’s malpractice carrier.

At a later date, Adams presented Gary with a written contract reflecting a 33% contingency fee for “all amounts covered” and assured him that the sole purpose of the contract was to present to Watkins’s malpractice carrier. Gary asked Adams to write the terms of their oral contract on the back of the written contract. She complied and noted, “will see malpractice insurance to re-pay attny fees & loses (probate & taxes); Bill [Watkins] has $1m in coverage and CNA has been notified; in ins. is insufficient to cover cost of litigation we agree to pro-rata reduction of fees.”

Adams successfully had the deed transferring Otis’s primary asset to the trust and probated Otis’s estate with the appointment of Gary as administrator. When Gary asked her about filing a malpractice suit against Watkins, Adams told him to seek other counsel for that issue.

Procedural History

Gary sought advice from several other attorneys and learned that the statute of limitations for a malpractice claim against Watkins had expired. Gary then hired attorney Harry McDermott to assist with finalization of Otis’s estate. Gary terminated Adam’s services with a demand that she relinquish any claim for fees. Adams responded by filing an attorney-fee lien in the probate estate for $613,333, approximately one-third of the value of the land Adams had removed from the trust. Gary countered with a suit against Adams, on behalf of himself and the estate, for (1) breach of contract, (2) fraud, and (3) malpractice for failing to timely file a malpractice action against Watkins.

Adams filed a motion for summary judgment, arguing, among other things, that Gary had no case against Watkins because of lack of privity. The trial court found that all of Gary’s dealings with Watkins had been on behalf of Otis and Mabel. Accordingly, the trial court granted most of Adams’s motion for summary judgment, leaving only Gary’s individual claim of fraud in tact.

Appeal

On appeal, the Arkansas Court of Appeals explained that, for Gary’s malpractice action against Adams to be successful, he must be able to prove that his malpractice claim against Watkins would have been successful. In addition, Gary must have had direct privity with Watkins for Gary to hold Watkins responsible for any type of legal negligence. After setting out this framework, the court explained that the trial court had erred in granting summary judgment because there was a genuine issue of material fact concerning whether Watkins had ever represented Gary individually.

Specifically, the court pointed to Gary’s guardianship petition that included the signature of “Bill Watkins, His Attorney” and Gary’s testimony that he sought advice from Watkins regarding his rights to Otis’s estate. The court reasoned that, because Gary had offered evidence that Watkins (1) advised him on legal matters and/or (2) contracted to provide him with legal services, the privity issue must be decided by a jury. As such, the court reversed the trial court’s grant of partial summary judgment and remanded the case for further proceedings.

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