[J-61-2016]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, JJ.
ESTATE OF ROBERT H. AGNEW, : No. 76 MAP 2015
MARGARET ALZAMORA, INDIVIDUALLY :
AND AS EXECUTRIX OF THE ESTATE : Appeal from the Order of the Superior
OF ROBERT H. AGNEW, WILLIAM AND : Court at No. 2195 EDA 2014, dated
SHEILA HENNESSY, H/W, MARGARET : February 2, 2015, reconsideration
HENNESSY, JAMES AND CHRISTINE : denied April 7, 2015, reversing the grant
HENNESSY, H/W AND PAUL AND : of summary judgment of the Chester
EILEEN JANKE, H/W : County Court of Common Pleas, Civil
: Division, at No. 12-09300, dated June 4,
: 2014 and remanding
v. :
: ARGUED: May 10, 2016
:
DANIEL R. ROSS, ESQUIRE, MEGAN :
MCCREA, ESQUIRE AND ROSS & :
MCCREA, LLP :
:
:
APPEAL OF: DANIEL R. ROSS, :
ESQUIRE AND MEGAN MCCREA, :
ESQUIRE :
OPINION
JUSTICE DOUGHERTY DECIDED: January 19, 2017
We consider whether individuals who are not named in an executed
testamentary document have standing to bring a legal malpractice action against the
testator’s attorney, as purported third-party beneficiaries to the contract for legal
services between the testator and his attorney. For the reasons that follow, we
conclude such individuals do not have standing to sue the testator’s attorney for a
breach of contract. We therefore reverse the Superior Court and remand for
reinstatement of the trial court’s order granting summary judgment and dismissing the
claims.
As the appeal arises from the grant of summary judgment, we set forth the facts
as viewed in the light most favorable to the non-moving parties, in this case, plaintiffs-
appellees William and Shelia Hennessy, James and Christine Hennessy, Eileen and
Paul Janke, Margaret Hennessy and Margaret Alzamora. Toy v. Metro. Life Ins. Co.,
928 A.2d 186, 195 (Pa. 2007). In November 2003, the testator Robert Agnew retained
defendant-appellant Daniel Ross, Esquire, to draft various estate planning documents.1
Ross drafted a Will and an amendment to Agnew’s Revocable Trust, which was first
established in 1994, in order to effectuate Agnew’s intended bequests.2 Over the next
several years, Ross drafted various amendments to both the Revocable Trust and the
Will, as directed by Agnew; these documents, including a 2007 Trust Amendment, were
executed by Agnew.3 As of 2010, Agnew’s Will bequeathed specific gifts of cash and
property to selected friends and family members, including appellees, who are relatives
1
The record does not contain a retainer agreement or other contract for legal services
between Agnew and Ross. From our review of the record, it appears Ross billed
Agnew for each service as he provided it. There is no dispute appellees were not
parties to this contract.
2
The parties refer to Agnew’s Will and the amendments to the Revocable Trust as
“testamentary documents.” The Will and the Revocable Trust are two separate types of
testamentary documents. The Revocable Trust is an inter vivos trust supporting Agnew
during his lifetime and distributing the residue of his estate and the remains of the trust
upon his death. The requirements for wills and trusts generally are codified in the
Probate, Estates and Fiduciaries Code (Probate Code). See 20 Pa.C.S. §§2501-2521
(wills); 20 Pa.C.S. §§7701-7799.3 (trusts).
3
Agnew signed trust amendments in 2003, 2006, and 2007. Changes made to the
Revocable Trust by the 2007 Trust Amendment did not involve either beneficiaries or
distributions; references in this opinion to the 2007 Trust Amendment are taken from the
2006 Trust Amendment, as the 2007 Trust Amendment is not separately included in the
record. The parties do not dispute that the relevant content of the 2006 and 2007 Trust
Amendment is the same.
[J-61-2016] - 2
of his late wife, and the residue of his estate to the Revocable Trust. The 2007 Trust
Amendment more specifically directed that upon Agnew’s death the remaining principal
and accumulated income of the Revocable Trust should be distributed to pay the
balance of any legacies in the Will that the estate is otherwise unable to pay. 2007
Trust Amendment at 2, Exhibit E to Motion for Summary Judgment. If there were
assets remaining in the Revocable Trust following satisfaction of the legacies under the
Will, the remaining assets were to be distributed to Muhlenberg College, Temple
University, Chestnut Hill College and Drexel University in the form of five $250,000
scholarship funds. Id. at 2-3. If there were assets remaining following distribution of the
scholarship funds, the residue was to be distributed to Muhlenberg College, Chestnut
Hill College and Drexel University. Id. at 3.
In March 2010, Agnew was admitted into a hospice program.4 During that
summer, appellee Margaret Alzamora, contacted Ross and told him Agnew wanted to
make changes to his estate plan. Accordingly, on August 18, 2010, Ross met with
Agnew to discuss amendments to various existing testamentary documents and to
establish a new trust relating to property Agnew owned in Florida (the Florida Trust).
While Alzamora participated in a portion of the meeting between Agnew and Ross, she
was not present when the two actually discussed the estate plan. During the meeting,
Agnew related to Ross he wanted to limit the amounts going to charity and provide
more funds to appellees. Deposition of Ross, 10/3/2013 at 41, Exhibit J to Motion for
Summary Judgment. Agnew told Ross that Alzamora would subsequently provide him
with further details. Id. at 45.
On August 21, 2010, Alzamora contacted Ross by email and advised him the
residue of Agnew’s Revocable Trust was no longer to be distributed to the three
4
There is no claim that Agnew was at any relevant time incompetent.
[J-61-2016] - 3
colleges indicated in the 2007 Trust Amendment, but now was to be divided into five
equal shares between appellees. Email dated 8/10/2010, Exhibit K to Motion for
Summary Judgment. Alzamora also informed Ross that Agnew wished to make
bequests to appellees’ children. Id. Ross drafted an amendment to the Revocable
Trust (the 2010 Trust Amendment), which continued to provide for gifts in the amount of
$250,000 to four colleges, but expressly provided that the residue of the assets of the
Revocable Trust was to be distributed to appellees. 2010 Trust Amendment at 3-4,
Exhibit L to Motion for Summary Judgment. Additionally, Ross drafted a revised Will,
which provided various monetary gifts to appellees and their children.5 2010 Will at 1-3,
Exhibit L to Motion for Summary Judgment.
On August 27, 2010, Ross emailed the revised Will and the 2010 Trust
Amendment to Alzamora. Agnew reviewed the documents with Alzamora and did not
communicate any comments or request any changes to the documents. Agnew did not,
however, sign the revised Will or the 2010 Trust Amendment at that time. On
September 2, 2010, Ross met with Agnew and Agnew did sign the Florida Trust and the
2010 Will, which directed the residue of his estate should be distributed in accord with
the Revocable Trust.6 Agnew did not, however, sign the 2010 Trust Amendment. Ross
5
Under the 2010 Will, Margaret Hennessy received $25,000, James and Christine
Hennessy, Paul and Eileen Janke, and William and Sheila Hennessy received $50,000
each, and Margaret Alzamora received $75,000. James Hennessy also received
Agnew’s Florida real estate and Margaret Alzamora received Agnew’s New Jersey real
estate. Appellees’ children received bequests ranging from $1000 to $250,000. Exhibit
M to Motion for Summary Judgment, 2010 Will at 1-3.
6
Agnew’s Will provides:
Residue. I give all the rest of my estate of whatever nature wherever
situate, to the then-acting Trustee or Trustees under the Trust Agreement
executed on December 15, 1994, by my wife, MARIE H. AGNEW, and me
with FIRST FIDELITY BANK, N.A., as initial trustee, to be held and/or
distributed in accordance with the provisions thereof as existing at the time
(continued…)
[J-61-2016] - 4
did not have a copy of that document with him at that time. Ross retained all of the
executed documents and stored them in his firm’s will vault.
Agnew died in January 2011. Letters Testamentary were granted to Alzamora
and the revised Will executed in September 2010 was admitted to probate as Agnew’s
last will and testament. On February 10, 2011, Ross informed Alzamora it was his
belief the 2010 Trust Amendment had never been executed. Alzamora informed Ross
she did not have a signed version of the 2010 Trust Amendment. Alzamora Affidavit
dated 2/11/2014, Exhibit K to Memorandum of Law in Opposition to Motion for
Summary Judgment.
Appellees and the Estate of Robert Agnew filed suit against Ross, his partner
Megan McCrea, Esq., and Ross & McCrea LLP (collectively referred to as appellants),
alleging appellants breached the contract to provide legal services to their client Agnew,
when Ross failed to have Agnew execute the 2010 Trust Amendment. Specifically,
appellees claimed to be third-party intended beneficiaries of the contract for legal
services between Agnew and Ross, and as a result of Ross’s breach, appellees were
denied sums of money to which they were entitled under the 2010 Trust Amendment.
Appellees also asserted a legal malpractice claim sounding in negligence against Ross
and McCrea individually, and against Ross & McCrea LLP on a theory of respondeat
superior.
Appellants filed preliminary objections and the trial court sustained them in part,
holding the Estate of Robert Agnew was an improper party to the suit, and Alzamora’s
claims in her capacity as executrix should be dismissed. Trial Court Order dated
(…continued)
of my death. The current Trustees of this Trust are MARGARET
ALZAMORA and me.
2010 Will at 3-4, Exhibit M to Motion for Summary Judgment.
[J-61-2016] - 5
5/2/2013, Exhibit C to Motion for Summary Judgment. The trial court also dismissed
appellees’ negligence and respondeat superior claims against Ross, McCrea and the
firm, on the basis the individual appellees did not have attorney-client relationships with
appellants to support those claims. Id. However, the trial court concluded appellees
could potentially establish they were intended third-party beneficiaries of the legal
services contract between Ross and Agnew, and allowed that breach of contract claim
to proceed against Ross and McCrea individually. Id.
The parties proceeded to discovery, during which Ross testified in a deposition
with regard to the 2010 Trust Amendment: “I believe he would have signed the
amendment had I prepared it, but because it was not with me, it was not discussed and
until I discussed it with him I can’t say for certain he would have signed it.” Deposition
of Ross, 10/3/2013 at 30, Exhibit J to Motion for Summary Judgment; see also id. at 77-
78 (“… [Agnew] had generally indicated that intent but the specifics I had not spoken to
him about. So until I spoke to him specifically about that it is only speculation what he
would have signed.”). Ross attributed his failure to bring the 2010 Trust Amendment to
the September meeting to “oversight.” Id. at 30. He further stated it was a mistake not
to present the 2010 Trust Amendment to Agnew. Id. at 30, 78. During her deposition,
Alzamora acknowledged Agnew was aware the 2010 Trust Amendment had been
prepared and he had previously reviewed it, but confirmed that it was not among the
documents executed at the September 2010 meeting. Deposition of Alzamora, 11/7/13
at 46-50, 88. Exhibit F to Motion for Summary Judgment.
At the close of discovery, appellants moved for summary judgment, which the
trial court granted. The trial court recognized that appellees argued they are third-party
beneficiaries to the contract for legal services between Ross and Agnew, and framed
the issue before it as “whether there is any executed document which indicates that
[J-61-2016] - 6
these plaintiffs were intended as beneficiaries.” Trial Court Opinion dated June 4, 2014
at 4, 7. In dismissing appellees’ claim, the court held in order to maintain the breach of
contract action against Ross as third-party beneficiaries to the legal services contract
between Agnew and Ross, appellees would need to show that there is an “otherwise
valid” document naming them as recipients of all or part of the estate. Id. at 7. “In other
words, the beneficiary’s right must be shown and established by the showing of some
otherwise valid document that effectuates the intention of the parties [to the legal
services contract].” Id. The trial court relied on Gregg v. Lindsay, 649 A.2d 935 (Pa.
Super. 1994), where the Superior Court held the claimant was not entitled to sue the
testator’s lawyer for breach of contract when the testator never signed the drafted will
naming claimant as heir.7 In Gregg, there was evidence to show the testator approved
of the new will, but there were no witnesses available to effectuate his execution of it at
that time, and he later died before signing it. Id. at 936-37. In this case, the trial court
noted “there is no competent evidence of that which transpired at the September [2010]
meeting between Mr. Agnew and Ross.” Trial Court Opinion at 9.
The Superior Court reversed, opining there was evidence of the September 2,
2010 meeting, and implying the trial court did not examine the facts in the light most
favorable to appellees in violation of the applicable standard of review on appeal from
summary judgment. Estate of Agnew v. Ross, 110 A.3d 1020, 1027 (Pa. Super. 2015).
7
The Superior Court in Gregg considered whether the holding in Guy v. Liederbach,
459 A.2d 744 (Pa. 1983), allowing a named legatee to sue the testator’s lawyer for
breach of contract where her legacy failed due to the lawyer’s legal mistake, should be
expanded to allow recovery where, inter alia, the new draft will naming the claimant was
never executed. Gregg, 649 A.2d at 938. The Gregg panel concluded Guy “created a
right of recovery on the theory of a third party beneficiary contract in a narrow class of
cases in which it was clear that an innocent party had been injured by legal malpractice
in the execution of an otherwise valid will.” Id. at 937. We discuss Guy in more detail
infra.
[J-61-2016] - 7
The Superior Court considered Ross’s deposition testimony that he believed he “made
a mistake by not presenting the 2010 Trust Amendment for Mr. Agnew’s signature at
the September [2010] meeting,” and further admitting this was an “oversight.” 110 A.3d
at 1028, citing Deposition of Ross, 10/3/2013 at 25, 30. The Superior Court
acknowledged Ross also stated, “I can’t say for certain he would have signed it,” id.,
citing Deposition of Ross, 10/3/2013 at 30, but the panel focused on the fact Ross had
been Agnew’s lawyer for seven years prior to his drafting the 2010 Trust Amendment,
and observed this ongoing relationship distinguished this case from Gregg, where the
lawyer had never met the testator before drafting a will for him at, essentially, his
deathbed. Estate of Agnew, 110 A.3d at 1027 n.8.8 The Superior Court noted Gregg
was not precedential, noting the opinion was authored by one judge on a three-judge
panel, and garnered only CIR votes from the other two panel members. Id. at 1026 n.6.
The Superior Court further held the trial court erred in failing to apply a certain
footnote from Guy v. Liederbach, 459 A.2d 744 (Pa. 1983). In Guy, four justices (a
majority of those participating) joined the holding that plaintiff Frances Guy, expressly
named as an heir in an executed will, stated a cause of action for breach of contract
against the lawyer who drafted the will, where the signed will was later held to be invalid
because Guy herself witnessed the testator’s signature, at the lawyer’s direction, and in
violation of then-applicable New Jersey law.9 The Court adopted Restatement (Second)
8
Contrary to the Superior Court’s recitation of the Gregg facts, drafting attorney
Lindsay had a prior attorney-client relationship with the testator, Arthur Blain. Lindsay
drafted a will for Blain in 1979 naming Phyllis Murphy as the sole beneficiary and
executrix. In 1983, while hospitalized, Blain directed Gregg to contact Lindsay and have
him draft a new will making a substantial bequest to Gregg, and naming him executor.
Gregg, 649 A.2d at 936.
9
Former Chief Justice O’Brien did not participate. Justices Roberts and McDermott
filed dissenting opinions and would not have allowed recovery on a breach of contract
theory. A majority of the participating justices also rejected the plaintiff’s separate
(continued…)
[J-61-2016] - 8
of Contracts §302 in determining Guy had standing to make such a claim as an
intended third-party beneficiary of the contract for legal services between the testator
and his lawyer.10 Id. at 757. The Court utilized the Section 302 analysis to devise the
following two-part test for determining whether a person is an intended third-party
beneficiary of a contract between others, such that the third party may enforce the
contract:
(1) the recognition of the beneficiary’s right must be “appropriate to
effectuate the intention of the parties,” and
(2) the performance must “satisfy an obligation of the promisee to pay
money to the beneficiary” or “the circumstances indicate that the promisee
intends to give the beneficiary the benefit of the promised performance.”
Guy, 459 A.2d at 751. The Court stated the first part of the test sets forth a standing
requirement, which restricts application of the second part of the test, “which defines the
intended beneficiary as either a creditor beneficiary (§ 302(1)(a)) or a donee beneficiary
(§ 302(1)(b)).” Id. The Court applied this test to hold a third party to a legal services
(…continued)
claims for legal malpractice under a trespass (or tort) theory of recovery. Guy, 459 A.2d
at 753.
10
Section 302 entitled Intended and Incidental Beneficiaries provides:
(1) Unless otherwise agreed between promisor and promisee, a
beneficiary of a promise is an intended beneficiary if recognition of a right
to performance in the beneficiary is appropriate to effectuate the intention
of the parties and either
(a) the performance of the promise will satisfy an obligation of the
promisee to pay money to the beneficiary; or
(b) the circumstances indicate that the promisee intends to give the
beneficiary the benefit of the promised performance.
(2) An incidental beneficiary is a beneficiary who is not an intended
beneficiary.
Restatement (Second) of Contracts §302.
[J-61-2016] - 9
contract has standing to bring an action against the testator’s lawyer to enforce a failed
legacy where “the intent to benefit [the third party] is clear and the promisee (testator) is
unable to enforce the contract.” Id. at 747. The Court thereby expressly overruled the
prior case law requiring privity in such cases. Id. at 751, citing Spires v. Hanover Fire
Ins. Co., 70 A.2d 828 (Pa. 1950) (only where parties to contract express intention that
third party is to be beneficiary of their contract may third party have standing to enforce
the contract).
According to Guy, in order for a plaintiff to have standing as a third-party
beneficiary to the contract of others, her “right to performance must be ‘appropriate to
effectuate the intentions of the parties,’” and the “standing requirement leaves discretion
with the trial court to determine whether recognition of third-party beneficiary status
would be ‘appropriate.’” Id. at 751. The Court further made clear the relevant
underlying contract (on which the plaintiff is suing), “is that between the testator and the
attorney for the drafting of a will. The will, providing for one or more named
beneficiaries, clearly manifests the intent of the testator to benefit the legatee. … Since
only named beneficiaries can bring suit, they meet the first step standing requirement of
§302.” Id. In Guy, the will naming Guy was signed by the testator, and therefore, the
Court concluded allowing her to enforce the contract between Guy and his lawyer would
“effectuate the intentions of the parties.” Id. at 751, quoting Section 302.
Guy includes a footnote on which the Superior Court relied to create a cause of
action for appellees here. The footnote refers to “non-named beneficiaries,” and as Guy
was expressly identified in the will at issue in that case, the footnote clearly is dicta:
There are, of course, beneficiaries under a will who are not named, and
who may be either intended or unintended beneficiaries. The standing
requirement may or may not be met by non-named but intended
beneficiaries: the trial court must determine whether it would be
“appropriate” and whether the circumstances indicate an intent to benefit
non-named beneficiaries. It follows that unintended third party
[J-61-2016] - 10
beneficiaries could not bring suit under § 302 against the drafting attorney.
In making that determination the trial court should be certain the intent [of
the contracting parties] is clear.
Id. at 752 n. 8. Ultimately, the Court concluded Guy was entitled to pursue her claim
against the drafting attorney because she was named in an executed will which was
made invalid only through the drafting attorney’s clear error regarding the applicable law
relating to witnesses. The will was not made invalid on the basis it was never signed by
the testator. The Court specifically held “persons who are named beneficiaries under a
will and who lose their intended legacy due to the failure of an attorney to properly draft
the instrument should not be left without recourse or remedy[.]” Id. at 752.
In this case, the Superior Court determined Guy, and particularly footnote 8,
directed that appellees have standing to sue appellants, and remanded for further
proceedings. The court opined the record “supports an inference that Ross intended to
give [a]ppellants the benefit of his contract with Mr. Agnew.” 110 A.3d at 1028. The
court concluded the trial court should have recognized appellees held a “right to
performance” of the contract between Agnew and Ross because such right was
”appropriate to effectuate the intention of the parties.” Id.
Appellants filed a petition for allowance of appeal, and we granted allocatur to
consider: 1) whether the Superior Court erred, and failed to apply “clear precedent,” in
holding “an executed testamentary document naming a third party as a beneficiary was
not a prerequisite for that third party to have standing to bring a legal malpractice action
based on breach of contract” against the testator’s attorney; and 2) whether the
Superior Court erred when it determined evidence of the intent of the testator’s attorney
alone was sufficient to establish an issue of fact to defeat summary judgment on the
[J-61-2016] - 11
issue of a third party’s standing to pursue a legal malpractice breach of contract action
against a testator’s attorney. Estate of Agnew v. Ross, 122 A.3d 1030 (Pa. 2015).11
Appellants first argue the Superior Court’s decision to allow appellees’ lawsuit
against them to proceed conflicts with the narrow exception to strict privity this Court
created in Guy, as well as the Superior Court’s own earlier decisions in Gregg, supra,
Hess v. Fox Rothschild, LLP, 925 A.2d 798 (Pa. Super. 2007) (declining to extend
narrow class of third-party beneficiaries identified in Guy to legatees of residuary trust
who claimed their intended legacy was diminished by attorney’s drafting error), and
Cardenas v. Schober, 783 A.2d 317 (Pa. Super. 2001) (would-be legatees could not
11
Appellants phrased their three questions on appeal as follows:
1. Whether the Superior Court erred when it determined, in a
published decision, contrary to Guy v. Liederbach, 501 Pa. 47, 459 A.2d
744 (1983), as well as reported Superior Court decisions, Gregg v.
Lindsay, 437 Pa. Super. 206, 649 A.2d 935 (1994), Cardenas v. Schober,
2001 Pa. Super. 253, 783 A.2d 317 (2001) and Hess v. Fox Rothschild,
2007 Pa. Super. 133, 925 A.2d 798 (Pa. Super. 2007), an executed
testamentary document naming a third party as a beneficiary was not a
prerequisite for that third party to have standing to bring a legal
malpractice action based on breach of contract as third party intended
beneficiary of contract against the testator’s attorney?
2. Whether the Superior Court so far departed from accepted judicial
practices or abused its discretion in failing to apply the clear precedent of
Guy v. Liederbach, as well as other reported Superior Court decisions,
Gregg v. Lindsay, Cardenas v. Schober and Hess v. Fox Rothschild, when
it determined an executed testamentary document naming a third party as
a beneficiary was not a prerequisite for that third party to have standing to
bring a legal malpractice action based on breach of contract as third party
intended beneficiary of contract against the testator’s attorney?
3. Whether the Superior Court erred when it determined, in a
published decision, evidence of the intent of the promisor (the testator’s
attorney) alone was sufficient to establish an issue of fact to defeat
summary judgment on the issue of a third party’s standing to pursue a
legal malpractice breach of contract action against a testator’s attorney?
Estate of Agnew, 122 A.3d 1030. In their briefs to this Court, the parties briefed
Questions 1 and 2 as a single issue, and we consider them as such in this opinion.
[J-61-2016] - 12
recover from executor because they were not named legatees in decedent’s will and
handwritten documents purporting to bequeath money and property to them did not
constitute otherwise valid will). Appellants note in Guy, this Court looked to the
provisions of an executed will to determine the testator’s intent to benefit Guy and to
conclude Guy was an intended third-party beneficiary of the contract between the
testator and his lawyer. Appellants assert that allowing a party to maintain an action for
legal malpractice against a testator’s lawyer in the absence of an executed
testamentary document identifying that party as a beneficiary would undermine the
integrity of properly executed wills, enhance the risk of misinterpretation of the testator’s
intent, undermine an attorney’s undivided loyalty to his client and encourage fraudulent
claims. Furthermore, appellants argue, if the Superior Court’s published decision is
allowed to stand, attorneys could be liable to pay bequests a testator never intended to
make. Appellants observe Pennsylvania does not allow the use of extrinsic evidence to
show the testamentary intent of the testator was other than reflected in the executed
testamentary document because to allow the use of extrinsic evidence to prove such a
claim would open the door to fraud, result in the defeat of the testator’s intention, as well
as nullify the provisions of the Probate Code which require testamentary documents to
be in writing and signed by the testator. Appellants’ Brief at 28, citing In re Beisgen’s
Estate, 128 A.2d 52, 55 (Pa. 1956) (testator’s intent must be determined from face of
the will and extrinsic evidence cannot be used as evidence of testator's intent
independent of the written words employed); In re Umberger’s Estate, 87 A.2d 290, 293
(Pa. 1952) (“It is not satisfactory procedure to accept parol testimony to explain
unambiguous language in a will.”); In re Penrose’s Estate, 176 A. 738, 739 (Pa. 1935)
(testimony is not admissible to alter or add to the terms of a will).
[J-61-2016] - 13
Appellants also argue an attorney owes no obligation to potential heirs to have
testamentary documents executed promptly, or at all, and cites cases from other
jurisdictions to support its position. Appellants’ Brief at 30-31, citing Gregg; Linth v.
Gay, 360 P.3d 844, 848-49 (Wash. App. 2015) (trustor’s attorney did not owe duty to
trust beneficiary to properly execute trust documents because of concerns about
compromising attorney’s loyalty to client); Parks v. Fink, 293 P.3d 1275, 1287 (Wash.
App. 2013) (attorney owes no duty to prospective will beneficiary to have will executed
promptly; risk of interfering with attorney’s duty of undivided loyalty to client exceeds risk
of harm to prospective beneficiary); Sisson v. Jankowski, 809 A.2d 1265, 1269-70 (N.H.
2002) (attorney did not owe duty to testator’s brother, as prospective beneficiary, to
ensure testator executed his will promptly); Radovich v. Lock-Paddon, 41 Cal. Rptr. 2d
573, 584 (Cal. Ct. App. 1995) (attorney owed no duty to potential beneficiary where
testator had will in her possession for two months prior to death and did not execute it);
Krawczyk v. Stingle, 543 A.2d 733, 736 (Conn. 1988) (attorney not liable to third parties
for alleged negligent delay in execution of estate planning document).
Appellants further contend the rule disallowing a malpractice action without a
valid testamentary document naming the alleged heir-plaintiff is consistent with
Pennsylvania law requiring proof of actual loss. Appellants’ Brief at 31-32, citing, Myers
v. Seigle, 751 A.2d 1182, 1185 (Pa. Super. 2000) (summary judgment in favor of
lawyers appropriate where legal malpractice plaintiff could not establish actual loss or
identify design or manufacturing defect due to lawyers’ disposal of vehicle involved in
accident). Appellants argue a showing of actual loss in this case requires proof Agnew
would have executed the 2010 Trust Amendment naming appellees, absent a breach by
appellants, and appellants claim appellees cannot possibly produce such proof.
Appellants note there is no presumption under the law a decedent who requested
[J-61-2016] - 14
changes to his estate plan would have executed those amendments. According to
appellants, whether Agnew would have signed the 2010 Trust Amendment at some
future time if he lived longer is mere speculation, which is insufficient to establish the
existence of an actual loss and, in the absence of an executed testamentary document,
appellees cannot establish they sustained actual loss due to the conduct of appellants.
Appellants further assert the trial court properly found appellees could not
establish Agnew’s intention to benefit them with the residue of the Revocable Trust
because of the lack of an executed trust amendment naming appellees as beneficiaries.
According to appellants, the fact the 2010 Trust Amendment was never signed
distinguishes this case from Guy, where the will naming the plaintiff was signed by the
testator. Appellants contend Gregg, Cardenas, and Hess all demonstrate a testator’s
intent to benefit a third party must be determined from the text of an executed
testamentary document. Appellants’ Brief at 33, 38-39 citing Cardenas, 783 A.2d at
323-24; Hess, 925 A.2d at 808-09; Gregg, 649 A.2d at 937. Appellants argue appellees
have failed to establish a required element of their claim because they are unable to
show Agnew intended to benefit them when he did not sign the 2010 Trust Amendment,
while signing other documents.
Moreover, appellants claim the Superior Court’s interpretation of and reliance on
footnote 8 in Guy is erroneous; the footnote does not actually address whether an
individual named in an unexecuted testamentary document can establish third-party
intended beneficiary status, which is the precise issue in this appeal. Instead, the
footnote discusses “beneficiaries under a will who are not named,” and leaves open the
question of whether such “non-named” beneficiaries may be either intended or
unintended beneficiaries. Guy, 459 A.2d at 752 n.8. According to appellants, the text of
the footnote reflects this Court’s intent to require that an individual must be a
[J-61-2016] - 15
“beneficiary” under a testamentary document to maintain a cause of action against the
testator’s attorney and a person named in an unexecuted testamentary document is
not a beneficiary. Appellants posit the term “non-named” beneficiaries refers to persons
who are not specifically named, but are otherwise generally identifiable such as “my
wife’s children” or “my grandchildren.” Therefore, because the 2010 Trust Amendment
was never executed, appellants argue appellees were never beneficiaries, named or
unnamed, of Agnew’s Revocable Trust, and cannot rely on that document to claim
standing to sue Ross for a breach of his contract with Agnew.
Appellants also argue the Superior Court completely failed to consider the policy
reasons or rationale for requiring the testator’s intent to benefit a third party to be
affirmatively expressed in an executed testamentary document. Appellants contend the
panel’s decision improperly allows consideration of evidence extrinsic to the testator’s
executed testamentary documents to prove an intent by the testator contrary to the
actual executed documents. Appellants assert that, under this framework, it is
conceivable any disgruntled beneficiary or potential beneficiary can mount an indirect
attack on a validly executed will through the filing of a legal malpractice action using
extrinsic evidence that would not be admissible in a will contest to establish a testator’s
intent. Additionally, if left undisturbed, the Superior Court’s published decision will force
attorneys to pressure clients to promptly execute testamentary documents to avoid
being sued by potential beneficiaries if the testator fails to execute the documents prior
to death, for whatever reason. Appellants argue such concerns will impinge upon the
attorney’s duty of undivided loyalty to the testator as client.
Appellees maintain the Superior Court did not err for several reasons. First,
appellees argue third-party beneficiary standing is not limited to factual circumstances
which are similar to Guy. Appellees’ Brief at 11-13, citing, e.g., Scarpitti v. Weborg, 609
[J-61-2016] - 16
A.2d 147 (Pa. 1992) (home owners had standing under Section 302 as third-party
beneficiaries to contract between developer and architect, where developer hired
architect to enforce deed restrictions in planned community, and architect failed to
enforce restrictions uniformly). Appellees also distinguish this case from others where
third-party beneficiary status was denied. Id. at 13-14, citing Burks v. Fed. Ins. Co, 883
A.2d 1086 (Pa. Super. 2005) (bank’s insurance company not required to pay medical
bills of bank customer, who slipped and fell on bank premises, because at the time bank
and insurance company entered insurance contract neither party intended customer to
be beneficiary of contract or be protected by contract); Drummond v. Univ. of Pa., 651
A.2d 572 (Pa. Cmwlth. 1994) (prospective scholarship recipient did not have standing
under agreement between university and city because only city reserved the right to
enforcement). Appellees contend a non-contracting party should have standing to
enforce the contract as a third-party beneficiary where “the circumstances are so
compelling that recognition of the beneficiary’s right is appropriate to effectuate the
intentions of the parties.” Appellees’ Brief at 11, quoting Scarpitti, 609 A.2d at 150.
Appellees posit “compelling” circumstances occur where the party who claims standing
will be the one who primarily benefits from the promisor’s (in this case, the attorney’s)
performance and has the greatest interest in enforcement of the contract, where the
promisee (in this case, the testator) is no longer an interested party.
Appellees also dispute Guy required that they be named in an “otherwise valid”
document, as stated by the trial court, in order to establish them as third-party
beneficiaries of the contract between Ross and Agnew, and allow them to sue Ross.
See Trial Court Opinion at 7. Appellees note the phrase “otherwise valid” testamentary
document first appears in Gregg, and Gregg is distinguishable because there was no
evidence a contract even existed between the testator and the attorney there; even if a
[J-61-2016] - 17
contract existed, there was no evidence of breach. Appellees’ Brief at 17. Thus,
according to appellees, the absence of an executed will in Gregg was not the fatal flaw
to Gregg’s claim; it was the absence of evidence of the testator’s intent, which appellees
claim is available here. Further, appellees assert reliance upon Cardenas is misplaced
because the panel misappropriated language from Gregg to establish the “otherwise
valid” standard. Appellees contend Cardenas failed to give adequate consideration to
the additional reasoning supplied by Gregg, i.e., the absence of evidence the attorney
breached the terms of any contract. Appellees state appellants’ reliance on Hess is
also misplaced because the panel refused to recognize the plaintiffs’ standing as third-
party beneficiaries even though the plaintiffs were named as the recipients of the
decedent’s residuary trust, which was established by the decedent’s will. Accordingly,
appellees reason their standing to sue the testator’s lawyer should not be premised on
signed documents but should instead be determined according to the particular
circumstances of this case.
Next, appellees reject appellants’ argument that public policy concerns militate in
favor of requiring an executed testamentary document naming alleged third-party
beneficiaries before they may be allowed to recover on the contract between a testator
and his lawyer. Appellees observe Guy rejected similar policy-based arguments against
the abandonment of the Spires strict privity requirement when adopting Section 302,
concluding the Section 302 analysis would provide enough protection from illegitimate
third-party actions. Further, appellees deny they are indirectly contesting Agnew’s
estate plan under the guise of a contract claim. Rather, appellees maintain they are
innocent parties injured by legal malpractice in the execution of an otherwise valid
testamentary document — the 2010 Trust Amendment — as part of a comprehensive
estate plan. Appellees argue the evidence to support their claim should not be limited
[J-61-2016] - 18
to the face of the executed testamentary documents because such a limitation does not
reflect the testator’s true intent. Appellees’ Brief at 28, citing Jones v. Wilt, 871 A.2d
210, 214 (Pa. Super. 2005) (permitting named legatee of validly executed will to use
drafting attorney’s deposition testimony to prove attorney acted negligently or breached
his contractual duty to provide legal service to decedent under third-party beneficiary
theory). Appellees assert, unlike other jurisdictions, Pennsylvania courts permit
consideration of extrinsic evidence to determine the testator’s intent to benefit a third
party. Guy, 459 A.2d at 752 (intent of testator shown by his arrangements with attorney
and text of will); Jones 871 A.2d at 214 (permitting use of drafting attorney’s deposition
testimony to prove malpractice claim). Appellees argue Pennsylvania’s approach is
further elucidated by the Guy Court’s willingness to recognize claims of third parties
who, though not specifically named in a will, can show that they were nonetheless
intended “non-named beneficiaries.” Appellees’ Brief at 27, citing Guy, 459 A.2d at 752
n.8. Appellees reject appellants’ reliance upon cases from other jurisdictions such as
Radovich and Sisson on the basis they involved tort concepts rather than contract
principles, the latter of which underlie legal malpractice claims in Pennsylvania. See
Guy, 459 A.2d at 753 (intended third-party beneficiary may bring legal malpractice claim
against testator’s attorney on breach of contract theory only).
Finally, appellees argue recognition of their right to performance of Agnew’s
contract with appellants is appropriate because they are innocent parties injured by
legal malpractice in the execution of an otherwise valid testamentary document. But for
appellants’ breach, argue appellees, Agnew would have signed the 2010 Trust
Amendment. Appellees assert there is evidence of a contract for legal services, i.e., for
the drafting of amendments to an estate plan, evidence of Agnew’s intent the
amendments benefit the appellees, and an absence of evidence Agnew consented to
[J-61-2016] - 19
allowing the 2010 Trust Amendment to remain unsigned, or had no intention of signing
the Trust Amendment.
We consider the parties’ arguments in light of the proper standard of review. In
this case, the trial court granted summary judgment in favor of appellants and dismissed
appellees’ attempt to recover for breach of the contract between Agnew and his
lawyers. Summary judgment is appropriate where the record clearly demonstrates
there is no genuine issue of material fact and the moving party is entitled to judgment as
a matter of law. Atcovitz v. Gulph Mills Tennis Club, Inc., 812 A.2d 1218, 1221 (Pa.
2002); Pa. R.C.P. No. 1035.2(1). When considering a motion for summary judgment,
the trial court must take all facts of record and reasonable inferences therefrom in a light
most favorable to the non-moving party. Toy, 928 A.2d at 195. Whether there are no
genuine issues as to any material fact presents a question of law, and therefore, our
standard of review is de novo and our scope of review plenary. Weaver v. Lancaster
Newspapers, Inc., 926 A.2d 899, 902-03 (Pa. 2007).
Our review reveals the Superior Court erred in reversing the trial court’s grant of
summary judgment. We agree with appellants that the fact appellees were named as
beneficiaries in the unexecuted 2010 Trust Amendment does not provide them with
standing to recover on a contract claim against appellants. Stated another way, we hold
an executed testamentary document naming an individual as a legatee is a prerequisite
to that individual’s ability to enforce the contract between the testator and the attorney
he hired to draft that particular testamentary document. See, e.g., Guy, supra (plaintiff
had standing to sue testator’s lawyer for mistake in drafting will, where she was named
legatee in that will). Although appellees are named heirs in Agnew’s 2010 Will, they
recovered their legacy under that will and we do not consider that document as
dispositive of appellees’ right to sue Ross for any breach related to the Revocable Trust
[J-61-2016] - 20
and its amendments. In our view, the dispositive testamentary documents in this claim
for breach of contract related to the drafting and execution of the 2010 Trust
Amendment, are the 2007 Trust Amendment in which appellees are not named, and the
unexecuted 2010 Trust Amendment in which they are named.
To the extent appellees — and the Superior Court — consider Guy to direct the
opposite result, their reliance is misplaced because Guy is distinguishable on its facts.
Moreover, careful application of the test outlined in Guy actually supports the trial
court’s decision to dismiss appellants’ claims. The Court described a two-part test for
analyzing the rights and obligations of the alleged third-party beneficiary and the
testator’s lawyer. In order to determine whether an individual is an “intended third-party
beneficiary” with standing to sue a lawyer based on his contract with the testator the
court must first find “the recognition of the beneficiary’s right must be ‘appropriate to
effectuate the intention of the parties.’” Guy, 459 A.2d at 751, quoting Restatement
(Second) of Contracts §302. The Court further held “persons who are named
beneficiaries under a will and who lose their intended legacy due to the failure of an
attorney to properly draft the instrument should not be left without recourse or remedy[.]”
Id. at 752. In Guy, the plaintiff — expressly named in a will, which was executed by the
testator, but invalidated only due to the attorney’s mistake of law — clearly lost an
“intended legacy” due to the lawyer’s failure. Recognition of Guy’s right to recover
against the attorney in that case was therefore “appropriate to effectuate the intention of
the parties,” which clearly was to provide a bequest to Guy. However, application of
these precepts to the facts in this case does not support the Superior Court’s conclusion
that appellees have standing to sue appellants on the contract between Ross and
Agnew. Unlike plaintiff Guy, who achieved standing based on an executed will in which
[J-61-2016] - 21
she was expressly identified, appellees seek to recover for breach of contract based on
their being named in a document the testator never signed.
Moreover, the Superior Court’s reliance upon the “non-named beneficiaries” dicta
in Guy’s footnote 8 to conclude appellees satisfied the Restatement Section 302 test
was error. Having reviewed case law from Pennsylvania and other jurisdictions, we
conclude the term “non-named beneficiaries” as used in that footnote refers to persons
who are given a bequest but are generally identified in a manner other than by name,
such as “my children” or “my heirs” or persons or entities to be identified after the
testator’s death, and therefore appellees are not “non-named beneficiaries” of the
Revocable Trust. See, e.g., In re Reinheimer's Estate, 108 A. 412 (Pa. 1919) (“[I]t is not
essentially necessary that a testator, in his will, name the legatee or devisee in order to
give effect to the bequest. It is sufficient if he is so described therein as to be
ascertained and identified.”); Fabian v. Lindsay, 765 S.E.2d 132, 141 (S.C. 2014)
(limiting standing under third-party beneficiary theory to persons named in the estate
planning document or otherwise identified in the instrument by their status, e.g., “my
children and grandchildren, my wife’s children”); In re Estate of Serrill, 159 So.2d 246
(Fla. Dist. Ct. App. 1964) (testatrix bequeathed $4000 each to “a Home for Boys” and “a
Home for Crippled Children” to be designated by her executors); Meriden Trust & Safe
Deposit Co. v. Spencer, 16 A.2d 349, 350 (Conn. 1940) (use of “child” or “children”
could be used in testamentary documents to designate unnamed beneficiaries); Moss v.
Axford, 224 N.W. 425, 427 (Mich. 1929) (testatrix devised residue to executor with
directions to pay residue to “person who has given me the best care in my declining
years and who in his opinion is the most worthy of my said property”).12
12
In fact, Agnew’s 2010 Will contains “non-named beneficiaries” of this kind. In the
clause titled “Tangible Personal Property,” Agnew willed his personal property to “such
of my friends and family as my Executor, in her discretion, chooses.” These potential
(continued…)
[J-61-2016] - 22
We now specifically consider whether appellees’ being named in the
unexecuted 2010 Trust Amendment is relevant to determine whether they should have
standing to sue appellants as third-party beneficiaries of the contract between Agnew
and Ross. The Superior Court determined that such evidence was appropriate to
establish the testator’s intent to benefit them, as described under the first prong of the
Restatement Section 302 test. We note the Probate Code provides a trust is created
only if “the settlor signs a writing that indicates an intention to create the trust and
contains provisions of the trust.” 20 Pa.C.S. §7732(a)(2). Likewise, the Probate Code
requires every will must be in writing and signed by the testator at the end of the will. 20
Pa.C.S. §2502. Accordingly, a testamentary instrument which is not signed, as required
by statute, cannot be given effect. In re Sciutti's Estate, 92 A.2d 188, 189 (Pa. 1952)
(“an unsigned document in the form of a will cannot be probated as a will. A will in order
to be valid must be signed.”) (emphasis in original). In Brown’s Estate, 32 A.2d 22 (Pa.
1943), this Court explained a will must be signed in order to be valid because: “(1) [I]t
shall appear from the face of the instrument itself that the testator’s intent was
consummated and that the instrument was complete and (2) to prevent fraudulent or
unauthorized alterations or additions to the will.” Id. at 23. Principles applicable to
construction of a trust are essentially the same as those used in will construction. In re
Tracy, 346 A.2d 750, 752 (Pa. 1975).
(…continued)
heirs are easily distinguishable from appellees, who are expressly identified, in an
unexecuted draft document. We reject appellees’ argument that the term “non-named
beneficiaries” as used in Guy’s footnote 8 refers to persons completely omitted from an
executed testamentary document — as appellees were completely omitted from the
executed 2007 Trust Amendment here — such that they might sue the testator’s lawyer
for breach of contract. Will at 3, Exhibit M to Motion for Summary Judgment.
[J-61-2016] - 23
The Probate Code prescribes two methods by which a trust may be revoked or
amended. Section 7752(c) provides, in relevant part:
(c) How to revoke or amend. — The settlor may revoke or amend a
revocable trust only:
(1) by substantial compliance with a method provided in the trust
instrument; or
(2) if the trust instrument does not provide a method or the method
provided in the trust instrument is not expressly made exclusive, by a
later writing, other than a will or codicil, that is signed by the settlor and
expressly refers to the trust or specifically conveys property that would
otherwise have passed according to the trust instrument.
20 Pa.C.S. §7752(c). In this case, the executed 2007 Trust Amendment expressly
provides “I reserve the right from time to time, by an instrument in writing delivered to
Trustee, to revoke or amend, either in whole or in part, this Agreement,” and thus
requires a writing to effectuate amendment of its terms. 2007 Trust Amendment at 5,
Exhibit E to Motion for Summary Judgment. Ross drafted an “instrument in writing”
purporting to change the terms of the 2007 Amendment, but in light of other Probate
Code provisions and relevant case law requiring that testamentary instruments be
signed to be valid, the unexecuted 2010 Trust Amendment probably would not be
enforceable in an estate challenge.13 The question is whether the draft’s existence is
proper evidence of the testator’s intent in an independent litigation arising out of an
alleged breach of contract, in light of Guy and its Section 302 test standing test.
13
In fact, it is likely that in an action to reform the Revocable Trust to reflect the
provisions of the unexecuted 2010 Trust Amendment pursuant to Section 7740.5 of the
Probate Code, appellees would not succeed. See 20 Pa.C.S. §7740.5 (claimants
attempting to reform unexecuted trust document must present clear and convincing
evidence “the settlor’s intent as expressed in the trust instrument was affected by a
mistake of fact or law, whether in expression or inducement”).
[J-61-2016] - 24
The first part of the Section 302 test requires a court to determine whether the
grant of standing would be “appropriate to effectuate the intentions of the parties.” The
best evidence of a testator’s intent is the testamentary document itself and the testator’s
arrangements with his attorney. Guy, 459 A.2d at 752; In re Hirsh’s Estate, 5 A.2d 160,
163 (Pa. 1939) (“The ‘pole star’ long fixed for the guidance of courts in interpreting
deeds of trust, as in interpreting wills, is the intention of the maker.”); Wallize v. Wallize,
55 Pa. 242, 248 (1867) (evidence of intent of devisor should be derived from writing
signed by him, otherwise innumerable cases would arise where evidence of mistake
would be claimed and proved). Additionally, when construing a will, “[t]he intention of
[a] testator … must be determined from what appears upon the face of the will.
Extrinsic evidence of surrounding facts must only relate to the meaning of ambiguous
words of the will. It cannot be received as evidence of testator’s intention independent
of the written words employed.” In re Beisgen’s Estate, 128 A.2d at 55; see also Tracy,
346 A.2d at 752 (principles applicable to trust construction are essentially same as
those used in will construction and intent of settlor must prevail).
The parties’ arguments exemplify the problems associated with attempting to
discern intent beyond the four corners of executed testamentary documents. For
example, appellants argue there is no evidence to indicate Agnew wished to sign the
2010 Trust Amendment, while appellees argue there is no evidence to indicate Agnew
did not wish to sign the document. The execution requirement and the bar on extrinsic
evidence act precisely to prevent courts from speculating regarding a testator’s intent
under such circumstances, when that intent is properly reflected only in an executed
testamentary document. In Guy, for example, the testator signed his will, thus clearly
expressing his intent to benefit Guy. Guy was deprived of her legacy not because the
will was never finalized and executed for unknown and unknowable reasons, but
[J-61-2016] - 25
because the testator’s attorney misunderstood applicable law and directed her to sign
the will as a subscribing witness, thus invalidating the testator’s fully-expressed
bequest. 459 A.2d at 752.
We are persuaded public policy considerations weigh against allowing a party to
use an unexecuted testamentary document to establish standing to sue the testator’s
lawyer for breach of contract as a third-party beneficiary under Restatement Section
302. In adopting Section 302, the Guy Court recognized the potential consequences of
relaxing the strict privity requirement, such as a possible reduction in the quality of legal
services rendered to clients due to attorneys’ increased concern over liability to third
parties. Guy, 459 A.2d at 752. As a result, the Court did not eliminate the privity
requirement for a negligence action, specifically stating third-party beneficiary standing
should be narrowly tailored. Id. at 746, 751, 752 (observing “a properly restricted cause
of action for third party beneficiaries in accord with the principles of [Section 302] is
available to named legatees;” Section 302 “provides an analysis of third party
beneficiaries which permits a properly restricted cause of action;” “the class of persons
to whom the defendant may be liable is restricted by principles of contract law;” and
“cases such as [Guy’s] who is a third party beneficiary, sound in [contract], and involve
considerations more restrictive than [tort].”).” Moreover, Guy repeatedly referred to
“named legatees” and “named beneficiaries” when describing potential claimants in a
breach of contract action. 459 A.2d at 746, 749, 751, 752 (emphasis added). The
reasons for doing so remain compelling, and may be even more compelling given
advances in technology which freely enable duplication, manipulation and reproduction
of documents and pieces of documents. Requiring an alleged heir to point to an
executed testamentary document — expressly identifying him — before he may sue
the testator’s lawyer for breach of a contract to which he was not a party serves to
[J-61-2016] - 26
protect the integrity and solemnity of the testator’s bequests from fraudulent claims.
Correspondingly, such a requirement lessens the chance a testator’s attorney will be
required to pay a bequest the testator never intended to make in the first place.
Moreover, Scarpitti, where a breach of contract action brought by third-party
beneficiaries was allowed, is easily distinguishable. In Scarpitti, the developer hired an
architect to enforce the architectural standards contained in the development’s recorded
subdivision deed restrictions. 609 A.2d at 148. This Court held owners of property in
the development — not parties to the contract between architect and developer — could
nevertheless bring a claim against the architect for failure to enforce the deed
restrictions uniformly. The Court concluded the property owners were intended third-
party beneficiaries of the contract between the developer and the architect because the
very purpose of that agreement was to ensure compliance with certain standards within
their own development, and thus the owners clearly were intended to benefit from the
establishment of a vehicle to enforce those standards. 609 A.2d at 151. The Court held
the claimant-owners reasonably relied “upon the promise [between developer and
architect] as manifesting an intention to confer a right on them.” Id. The Scarpitti
claimants, who relied upon recorded deed restrictions and a promise to uniformly
enforce those restrictions, are readily distinguishable from appellees; there is no
reasonable basis for appellees to rely upon appellants’ agreement to draft parts of
Agnew’s estate plan, where that legal agreement could have involved any number of
possible testamentary permutations or potential beneficiaries, and ultimately required
execution by the testator to validate those drafts. A testator may change an estate plan
at any time, adding and subtracting legatees, increasing and decreasing bequests.
Under such mercurial circumstances, we decline to confer standing to purported heirs to
prosecute a breach of contract action against the testator’s attorney on the basis the
[J-61-2016] - 27
attorney failed to ensure the testator signed the particular document making a potential
bequest.14
We recognize that Agnew apparently verbally expressed, in 2010, a desire to
benefit his late wife’s family more and to leave less to charity. Ross drafted the 2010
Will which provided substantial bequests to various family members, including
appellees. Ross also drafted the 2010 Trust Amendment which provided appellees
would receive the residue of the trust after all legacies provided for in the 2010 Will, and
the five college scholarships, were funded. Agnew signed the 2010 Will, but did not
sign the 2010 Trust Amendment, for reasons ultimately unknown and unknowable. It is
possible Agnew decided the bequests in his revised Will sufficiently benefitted appellees
and the 2010 Trust Amendment was unnecessary. Or, Agnew could have forgotten
about the 2010 Trust Amendment or mistakenly believed he had signed the document.
Under such circumstances, we are unconvinced allowing would-be legatees to use
extrinsic evidence to establish third-party beneficiary standing to bring a legal
malpractice action is consistent with the public policy considerations discussed above.15
Notwithstanding these compelling considerations, appellees insist the Superior
Court correctly concluded evidence of Ross’s intent was sufficient to establish an issue
of fact to defeat summary judgment. Estate of Agnew, 110 A.3d at 1028 (appellees
satisfied standing requirement because “the record supports an inference that Ross
intended to give [appellees] the benefit of his contract with Mr. Agnew”). Appellees
14
As such, our discussion here does not alter the Section 302 third-party beneficiary
analysis to be applied in the general commercial context, but rather explicates why relief
is not available in the particular circumstances presented in this appeal, namely, the
interface between Section 302 and the requirements of the Probate Code with respect
to testamentary documents.
15
We do not address the use of extrinsic evidence to prove a testator’s intent in other
contexts.
[J-61-2016] - 28
contend the intentions of both Ross and Agnew are relevant, and the record supports
inferences that Ross intended to give appellees the benefit of his contract with Agnew,
and also forgot to ensure Agnew signed the 2010 Trust Amendment. Deposition of
Ross, 10/3/2013 at 30, Exhibit J to Motion for Summary Judgment.
Appellants assert only the testator’s intent is material to determining third-party
beneficiary status, and so, whether or not appellees were the intended beneficiaries of
appellants’ legal services is dependent upon Agnew’s — not Ross’s — intent. Thus, an
executed testamentary document expressing the intent of Agnew to benefit appellees
specifically (rather than merely intending to contract with Ross to develop an estate plan
generally) is necessary to establish appellees have standing to sue Ross. Appellants
therefore contend the Superior Court improperly considered whether Ross, rather than
Agnew, intended to give appellees the benefit of the legal services contract, and the
panel further erred when it concluded there exists an issue of material fact regarding
intent that may be elucidated by Ross’s testimony about his alleged mistake.
We hold Agnew’s intent, as reflected in the executed testamentary documents,
is paramount, and extrinsic evidence may not be considered in undermining that
expressed purpose. The client has the ultimate authority to determine the purpose and
scope of an attorney’s representation. Pa.R.P.C. 1.2. An attorney cannot engage in
any representation that is in conflict with representation of the client, because “[l]oyalty
and independent judgment are essential elements in the lawyer's relationship to a
client.” Pa.R.P.C. 1.7; Maritrans GP, Inc. v. Pepper, Hamilton & Scheetz, 602 A.2d
1277, 1283 (Pa. 1992) (attorney owes fiduciary duty to client; such duty demands
undivided loyalty and prohibits attorney from engaging in conflicts of interest). It follows
from these general precepts that a testator’s purpose in engaging an attorney to draft an
estate plan is to benefit (or not) certain persons upon his death. An attorney is
[J-61-2016] - 29
obligated to draft documents which carry out the testator’s plan regardless of the effects
or consequences to any potential beneficiaries. To the extent the attorney has drafted
testamentary documents, which have been fully executed by the testator, such
documents are conclusive evidence the testator intended to benefit the named
beneficiaries, and we hold individuals who are named only in unexecuted,
consequently invalid documents — such as appellees with respect to the 2010 Trust
Amendment — may not claim status as third-party beneficiaries of the legal contract
between the testator and his attorney, and may not achieve a legacy through alternate
means, such as a breach of contract action. The trial court correctly determined
appellees’ claims fail as a matter of law, and the Superior Court erred in reversing that
determination.
Accordingly, the order of the Superior Court is reversed, and the matter is
remanded for reinstatement of the trial court’s order granting summary judgment in
favor of appellants.16
Justices Baer, Todd, Donohue and Wecht join the opinion.
Chief Justice Saylor files a concurring opinion.
16
Following oral argument in this matter, appellants filed an application for leave to file
supplemental submission in order to provide the Court with additional authority from
other jurisdictions decided post-briefing, which appellants believed were germane to
issues before the Court. The application is hereby granted.
[J-61-2016] - 30