## Facts

- Frances Barcelo retained attorney David Elliott to prepare an estate plan, including a will and an inter vivos trust.
- The will made specific bequests to Barcelo’s children and devised the residuary estate to the inter vivos trust.
- The trust provided that trust income would be paid to Barcelo during her lifetime and, at her death, trust assets would be distributed to her children and siblings with the remainder to her six grandchildren.
- The trust was contemplated to be funded during Barcelo’s life, but the grandchildren alleged it was not properly funded or implemented.
- Barcelo executed the documents in September 1990 and died January 22, 1991.
- After Barcelo’s death, two of her children challenged the trust, and the probate court declared it invalid and unenforceable for reasons not disclosed in the record.
- The grandchildren alleged they settled for less than they would have received under a valid trust.
- The grandchildren sued Elliott for legal malpractice, claiming negligent drafting and implementation foreseeably caused the trust’s invalidation and their financial loss.

## Issues

1. Whether an attorney hired to draft a will or trust owes a professional duty of care to intended beneficiaries who were not the attorney’s clients.

## Decision

- The Texas Supreme Court affirmed summary judgment for Elliott.
- The court held an estate-planning attorney owes no professional duty of care to persons named as beneficiaries under a will or trust when the attorney did not represent them.
- Because the grandchildren lacked privity with Elliott, they could not establish the duty element of negligence, and their malpractice claim failed as a matter of law.
- The court adopted a bright-line privity rule rather than a foreseeability-based exception for intended beneficiaries.
- The court emphasized policy concerns, including preserving undivided loyalty to the client, protecting client control over changing estate plans, avoiding indeterminate liability to non-clients, and limiting post-death evidentiary and confidentiality problems.

## Legal Principles

- Legal malpractice in Texas is a negligence claim requiring proof of a duty owed by the attorney to the plaintiff.
- Absent an attorney-client relationship, an attorney generally owes no duty of care to third parties allegedly harmed by the attorney’s representation of a client.
- In the estate-planning context, intended beneficiaries of a will or trust have no cause of action for malpractice against the drafting attorney without privity.
- Policy considerations supporting strict privity include avoidance of conflicts between duties to the client and claimed duties to beneficiaries, protection of the client’s freedom to revise estate plans, prevention of open-ended liability, and difficulties in proving intent after the client’s death.

## Conclusion

The court held that only the attorney’s client may sue for malpractice arising from estate-planning representation; intended beneficiaries who were never clients cannot recover because the attorney owes them no professional duty of care.


Barcelo v. Elliott, 923 S.W.2d 575 (Tex. 1996)