## Facts

- Charles Pizel retained attorney Eugene P. Zuspann to prepare a “secret” inter vivos trust intended to transfer land to Charles’s nephews.
- The trust depended on deeds and other steps to transfer property into the trust, but the deeds were not recorded and the trust was not properly funded or implemented during Charles’s lifetime.
- Zuspann later left his firm; attorney B. E. Whalen (Zuspann’s former law partner) assumed representation of Charles and drafted amendments and related estate-planning documents.
- Charles died with the trust still not effectively implemented, and the trust was later held ineffective; the nephews did not receive the land Charles intended for them.
- The nephews, as intended beneficiaries, sued Zuspann and Whalen for legal malpractice, alleging failure to advise and perform the work necessary to make the trust effective.

## Issues

1. Whether intended beneficiaries of an inter vivos trust may sue the settlor’s attorneys for malpractice despite lack of direct attorney-client privity.
2. Whether summary judgment for the initial drafting attorney was improper where evidence supported a continuing obligation, and causation was disputed after successor counsel assumed representation.
3. How duty and causation in estate-planning malpractice interact with limitations and related accrual doctrines when the defective plan is discovered after the client’s death.

## Decision

- The Kansas Supreme Court held that intended beneficiaries may, in appropriate circumstances, bring a malpractice action against attorneys whose negligent estate-planning work defeats the client’s intended transfers.
- The court reversed the summary judgment entered for Zuspann, holding that duty and causation could not be resolved as a matter of law on the record and were for the fact-finder.
- The court addressed Whalen’s liability and related limitations/causation questions in the context of the jury proceedings.
- In a later modification, the court clarified that any “continuing duty” language was not meant to impose an indefinite monitoring obligation, but to describe duties bounded by the scope of the engagement and the specific work undertaken.

## Legal Principles

- Strict privity is not an absolute bar to malpractice claims where the attorney’s services were intended primarily to benefit identifiable third parties, such as designated beneficiaries in an estate plan.
- In estate-planning representations, the attorney’s duty may include advising and taking reasonable steps necessary to make the plan legally effective, not merely drafting documents.
- Whether an attorney’s negligence was a proximate cause of a beneficiary’s loss is generally a fact question, particularly where multiple lawyers worked on the plan and corrective action may have been possible.
- Any continuing obligation arises from the scope of the representation and does not require perpetual oversight of the client’s estate plan after the engagement ends.

## Conclusion

The court permitted intended beneficiaries of an inter vivos trust to pursue malpractice claims against the settlor’s attorneys and held that disputed questions about the drafting attorney’s ongoing obligations and causation required fact-finding, while clarifying that such duties are limited by the agreed scope of representation rather than continuing indefinitely.


Pizel v. Zuspann, 247 Kan. 54, 795 P.2d 42 (Kan. 1990)