Death, Taxes And The Liability That Survives

The Kansas Court of Appeals issued an interesting opinion today concerning issues relating to attorney liability to the estate of a deceased client. The client had retained counsel to draft a living trust. After the client died, nearly half of her approximately $40 million estate went to taxes. Claims were thereafter filed by the personal representative against the attorney, a bank and other defendants.

The court rejected the attempt to frame the case as one involving breach of contract and concluded that the claim sounded on tort as a legal malpractice action. Because the malpractice (the assesment of the taxes) did not occur until after the client’s death, the claim of malpractice was based on alleged conduct that did not occur in her lifetime and did not survive her. However, the court remanded on claims of breach of fiduciary duty. The remand directs a determination whether the alleged breach took place prior to the death of client. (Mike Frisch)