concurring and dissenting.
The Court of Appeals, in concluding that summary judgment was inappropriate, considered that defendant lawyer did not tell his client, Sybille Willard, that she could give her entire estate to her children by getting her husband to waive his right to elect to take against her written will, under Ind.Code § 29-1-8-6, or by getting him to waive his intestate share under Ind.Code § 29-1-2-18. Obviously this is a common situation which has received express legislative treatment, and in my opinion it would be a breach of legal duty for a lawyer, finding a client in that very situation, to fail to explore the possibility of using the statutes. It may be that the defendant lawyer's failure to talk about this and other possible strategies produced no injury to the plaintiff beneficiaries. However, there is a reasonable possibility that armed with the knowledge that the statutes provided a legal and certain means of accomplishing her objective, she would have confronted her husband and he would have agreed at that point with her plan. Consequently, I would remand for trial as did the Court of Appeals.
I do however agree with the main legal point made by the majority opinion, namely that the breach of duty by an attorney in drafting a will for a client, can form the basis for a claim by known beneficiaries who suffer injury as a consequence of that breach of duty. The statute of limitation begins to run upon that claim on the date of death of the testator. Shideler v. Dwyer (1981), 275 Ind. 270, 417 N.E.2d 281.