PRESENT: All the Justices
CHARLES RUTTER, EXECUTOR
OF THE ESTATE OF MILDRED
DUNCAN
v. Record No. 012612 OPINION BY JUSTICE ELIZABETH B. LACY
September 13, 2002
JONES, BLECHMAN, WOLTZ &
KELLY, P.C., ET AL.
FROM THE CIRCUIT COURT FOR THE CITY OF NEWPORT NEWS
Norman Olitsky, Judge Designate
In this appeal, we consider whether the executor of an
estate could maintain an action for legal malpractice in the
preparation of the decedent's testamentary documents.
FACTS
This case was decided on demurrer, and, therefore, we take
as true all material facts properly pleaded by plaintiff Rutter
and all inferences properly drawn from those facts. Burns v.
Board of Supvrs., 218 Va. 625, 627, 238 S.E.2d 823, 824-25
(1977). In 1993, Mildred Duncan retained Jones, Blechman, Woltz
& Kelly, P.C. (the Jones Blechman firm) to assist in her estate
planning. Duncan wanted each of her two housekeepers to receive
a "remembrance amounting to about $5,000 respectively" and
wanted "10% of the residue of her estate be devised to Trinity
United Methodist Church and Washington and Lee University as
charitable bequests." John T. Thompkins, III, a member of the
Jones Blechman firm, prepared Duncan's last will and testament
and created a revocable trust. The language of the revocable
trust suggested the amount of the remembrance to the
housekeepers, but ultimately left the bequest amount to the
trustee's discretion.
Because the trust, as written, left the bequest to the
housekeepers to the trustee's discretion, the amounts of the
bequests to Washington and Lee University and Trinity United
Methodist Church were not ascertainable at the time of Duncan's
death. As a result, the bequests to Washington and Lee
University and Trinity United Methodist Church did not meet the
federal tax requirements for charitable tax deductions pursuant
to I.R.C. § 2055(a) and, upon Duncan's death, her estate
incurred tax liabilities on those bequests amounting to
$663,996.
Charles M. Rutter, III, the executor of Duncan's estate,
filed this legal malpractice action against the Jones Blechman
firm and Thompkins (collectively "the defendants") on behalf of
the estate, alleging in Count I that, as a result of the
defendants' negligent drafting of the will and revocable trust,
the testamentary documents failed to effectuate Duncan's
intentions and constituted a breach of contract between Duncan
and the defendants. * As damages for this breach, Rutter claimed
*
The second count of Rutter's motion for judgment alleged
that the defendants negligently advised Duncan's estate after
her death. The assignment of error limited this Court's review
to those allegations of negligence occurring "prior to
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that Duncan, "by and through her executor" was entitled to
recover the amount she paid the defendants to draft the
testamentary instruments and consequential damages of $663,996,
the amount of the otherwise avoidable tax liability assessed to
the estate. The defendants demurred to the motion for judgment
asserting that Rutter lacked the standing to bring the action
and was not damaged as a matter of law. The trial court
sustained the demurrer and entered a judgment in the defendants'
favor. We awarded Rutter this appeal.
DISCUSSION
The parties spend a great deal of time discussing the
existence or non-existence of privity between the executor,
Duncan, and the defendants. Privity, however, is not
dispositive in this case. For purposes of the issue before us,
there is no assertion that Rutter has privity with the
defendants independent of his capacity as the personal
representative of the decedent. There is also no dispute that
Rutter is entitled to undertake a number of activities regarding
Duncan's rights and interests in his representative capacity as
executor of her estate. The crux of this case is the ability of
an executor to bring an action for legal malpractice in
connection with the preparation of testamentary documents.
[Duncan's] death" and, therefore, the issues addressed in Count
II are not before us.
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Code § 8.01-25, enacted in derogation of common law,
provides that, "[e]very cause of action whether legal or
equitable, which is cognizable in the Commonwealth of Virginia,
shall survive either the death of the person against whom the
cause of action is or may be asserted, or the death of the
person in whose favor the cause of action existed." This
provision specifically limits survival of actions to those that
"existed" prior to the decedent's death. The relevant issue,
then, is whether the cause of action Rutter asserts was one
which could have been raised by Duncan during her lifetime.
A cause of action for legal malpractice requires the
existence of an attorney-client relationship which gave rise to
a duty, breach of that duty by the defendant attorney, and that
the damages claimed by the plaintiff client must have been
proximately caused by the defendant attorney's breach. In the
absence of any injury or damage, there is no cause of action.
Allied Productions v. Duesterdick, 217 Va. 763, 766, 232 S.E.2d
774, 776 (1977).
While the alleged breach of contract occurred during
Duncan's lifetime upon the drafting of her testamentary
documents, the damage or injury resulting from the breach that
Rutter claims – the avoidable estate tax liability - did not
occur until after Duncan's death. Nevertheless, Rutter argues
that there was a cause of action during Duncan's lifetime
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because she was entitled to recover the amounts she paid to the
defendants to draft the deficient testamentary documents. The
tax liability and associated accounting and legal expenses
incurred after her death, according to Rutter, were no more than
an escalation of the damages or injury caused by the defendants'
malpractice. We disagree.
As noted above, one of the elements of a legal malpractice
cause of action is injury or damage proximately caused by the
breach of contract. In this case, the fee Duncan paid the
defendants for their services was not an injury resulting from
the legal malpractice. It was merely the agreed-upon cost of
the service, the consideration given for the contract, and not
the damage or injury arising from the breach of the contract.
The injury or damage that was proximately caused by the
legal malpractice alleged in this case was the additional amount
of the tax assessed against the estate and additional legal and
accounting fees required – all of which did not arise until
after Duncan's death.
Accordingly, because the cause of action for legal
malpractice asserted in this case did not come into existence
during Duncan's lifetime and thus did not survive her death, we
will affirm the judgment of the trial court.
Affirmed.
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