[Wills & Trusts] 3. Ogle v. Fuiten

[clare77dr]

3. Ogle v. Fuiten

1.  Fact

• Oscar Smith and Alma Smith hired Fuiten (the Defender) to prepare the will.
•  According to the will, if the neither testator survived the other by 30 days, the property will equally go to the nephews (the Plaintiffs).
•  After 15 days of Smith’s death, Alma died of cancer, leaving the estate to pass by intestate secession.
• P claimed that it was breach of duty and negligence of D failing to including all contingent and foreseeable cases and the malpractice damaged P’s benefit.
• D filed a motion to dismiss the claim.
• The circuit court allowed the motion and the appellate court reversed.

2.  Issue

Is there a cause of action in the P’s allegation in which the attorney breached duty and failed to consider the intended beneficiary?

3.  Rules

1)  Fitzgerald v. Chicago Title & Trust Co. (1978):

A cause of action should not be dismissed on the pleadings unless it clearly appears that no set of facts can be proved which will entitle plaintiffs to recover.

2)  Pelham v. Griesheimer (1982), 92 Ill.2d 13:

• privity is not a prerequisite to an action by a nonclient against an attorney.
•  A nonclient must allege and prove "that the primary purpose and intent of the attorney-client relationship itself was to benefit or influence the third party”

4.  Application

1)  P’s allegation: the defender breached his duty in drafting the will by not reflecting the testator’s true intention, resulting in the damage to P, the intended beneficiary.

2)  D’s argument: The intent of the testator to benefit P is not clearly evident. And the complaint of P fails to allege a duty owed plaintiffs. D’s duty is just providing a valid instrument for dispose of the testator’s property according to the will.

3)  This case is not a collateral attack on the will. Thus, execution of the will is not affected.

4)  The court agreed with the appellate court’s decision the allegation of P was sufficiently stated the negligence and breach of contract/a third party beneficiary theory.

5.  Conclusion

The court affirmed.

* Fact finding 이 있었나? 있었다면 breach of duty, negligence 등에 대한 lower courts' decision 이나, 금액 등이 나왔을 것

여기서는 cause of action에 대한 rule과 application 만 다룸.

* 2심에서 remand 결정되었으로, 다시 1심으로 가야함.