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Keywords

plaintiffdefendantattorneylawyerdepositionsummary judgmentmalpracticewillduty of care

plaintiffdefendantattorneylawyerdiscoverystatutetrialsummary judgmentwillstatute of limitationsduty of care

Related Cases

Lilyhorn v. Dier, 214 Neb. 728, 335 N.W.2d 554

Facts

F. Gary Lilyhorn, the plaintiff, is the son of Luella M. Lilyhorn, deceased, and one of her four heirs. He alleged that the defendant attorney drafted a will that improperly devised 240 acres of property to him, despite the fact that his mother only held a life estate in the property, which the attorney knew. The will also made specific bequests to Lilyhorn's sisters but neglected to provide for his brother. Lilyhorn claimed that the attorney's malpractice resulted in him receiving a lesser share of the estate than intended. However, he admitted in his deposition that he had known since childhood about his mother's life estate.

Issue

Did the attorney owe a duty of care to the plaintiff, who was not his client, in the drafting of the will?

Rule

As a general rule, the duty to exercise reasonable care and skill which a lawyer owes his client ordinarily does not extend to third parties.

As a general rule the duty to exercise reasonable care and skill which a lawyer owes his client ordinarily does not extend to third parties.

Analysis

The court determined that the attorney's duty of care did not extend to the plaintiff because there was no attorney-client relationship regarding the drafting of the will. The plaintiff's admission of this fact in his reply supported the conclusion that the attorney could not be held liable for malpractice to someone who was not his client.

In granting summary judgment in favor of the defendant the trial court gave as a reason that the claim of the plaintiff was barred by the statute of limitations, Neb.Rev.Stat. § 25–222 (Reissue 1979). The parties argue in their briefs whether the statute begins to run at the time of the drafting of the will or at the time of the testatrix's death, and whether such action may be brought within 1 year of the discovery of facts by the plaintiff establishing that the defendant knowingly drafted an ineffective will. However, we need not resolve those issues. In his answer the defendant alleged, in defense of the plaintiff's claim, that no attorney-client relationship existed between the defendant and the plaintiff with respect to the drafting or execution of Luella M. Lilyhorn's will, which allegation was specifically admitted by the plaintiff in his reply.

Conclusion

The court affirmed the District Court's summary judgment in favor of the attorney, concluding that the plaintiff's claim was barred due to the lack of an attorney-client relationship.

The judgment was correct and is affirmed.

Who won?

John E. Dier, the attorney, prevailed because the court found that he owed no duty of care to the plaintiff, who was not his client.

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