We draft many estate plans for parents who wish to leave inheritances to their children. Many of those plans include trusts that name the children as later beneficiaries of the trust. Does a child who is named as beneficiary of a parent’s trust have a right to sue the attorney for actions by the parent that limits the child’s benefit? The courts in Mississippi, and the Nebraska appeals court, say no.

In February 2019, Marlene and Loran Kudlacek retained attorney William Olson and his firm Olson Zalewski Wynner LLP (Olson Zalewski) to update their estate plan. Marlene and Loran’s goals were to allow their son, Cory, to continue operating the family farm, provide an inheritance for their other son, Chad, and eventually transfer assets to their grandchildren. Marlene and Loran executed a joint revocable trust, and Loran and Cory executed a personal property joint tenancy agreement. In March 2020, Marlene, individually and as Loran’s attorney-in-fact, amended the trust so that net income from the trust would be distributed to both Cory and Chad instead of just Cory. Loran died in July 2020. The year after Loran’s death, litigation ensued between Marlene and Cory over the estate plan, and the matter eventually settled in 2024. Prior to settling the family dispute, Cory sued Olson Zalewski in 2022, alleging that the firm was negligent in drafting Marlene and Loran’s estate plan to include a revocable trust when Marlene and Loran clearly wanted the trust to be irrevocable. Olson Zalewski denied that the documents were drafted contrary to Marlene and Loran’s wishes and said that it owed no duty to Cory. Olson Zalewski later moved for summary judgment which the trial court granted. Cory appealed.

The appellate court affirmed the trial court’s judgment. Cory was not Olson Zalewski’s client; the original engagement letter reflected that Marlene and Loran were its clients, and the scope of their relationship with Olson Zalewski was to prepare an estate plan. Although an attorney may owe a duty to third parties in limited circumstances, those circumstances were not present in this case. Olson Zalewski could not zealously represent Marlene and Loran’s interests while simultaneously representing Cory’s interests because their interests may conflict. An attorney’s loyalty is to the clients who hired the attorney to prepare the estate plan. Olson Zalewski did not owe a duty to Cory either as a client or as a beneficiary of Marlene and Loran’s estate plan.

For the opinion in Kudlacek v. Olson Zalewski Wynner, click here.