## Facts

- A divorce judgment required Robert Tensfeldt to maintain specified testamentary provisions for his children.
- After the divorce, Robert retained estate-planning attorneys F. William Haberman and Roy C. LaBudde (and LaBudde’s firm) to prepare an estate plan that departed from the divorce judgment’s estate obligations.
- The children sued the attorneys asserting (1) intentional tort liability for intentionally aiding and abetting Robert’s violation of the divorce judgment and (2) professional negligence to non-client beneficiaries in connection with estate planning.
- On summary judgment, the circuit court held LaBudde liable as a matter of law for aiding and abetting the client’s unlawful act and allowed the children’s third-party negligence claim against LaBudde to proceed.
- The case reached the Wisconsin Supreme Court on certification after appeals from the summary-judgment rulings.

## Issues

1. Whether the divorce judgment’s estate-planning obligations were enforceable when entered and when Robert later sought a contrary estate plan.
2. Whether an attorney may be liable in tort for intentionally aiding and abetting a client’s violation of an enforceable divorce judgment.
3. Whether “qualified immunity” or a “good faith advice privilege” shields an attorney who claims the judgment’s enforceability was fairly debatable.
4. Whether intended beneficiaries may maintain a third-party legal malpractice claim where the alleged negligence did not thwart the client’s “clear intent.”

## Decision

- The court held the divorce judgment’s testamentary obligations were enforceable both when entered and when Robert later sought an estate plan inconsistent with them.
- The court affirmed summary judgment imposing liability on LaBudde for intentionally aiding and abetting Robert’s violation of the divorce judgment.
- The court held LaBudde was not entitled to qualified immunity or a good-faith advice privilege on the summary-judgment record.
- The court reversed the denial of LaBudde’s summary-judgment motion on the children’s third-party negligence claim because they could not show the attorney’s negligence thwarted Robert’s clear intent.
- The court affirmed in part, reversed in part, and remanded for further proceedings consistent with its rulings.

## Legal Principles

- Divorce judgments may impose enforceable obligations affecting a party’s testamentary dispositions, and noncompliance may be treated as an unlawful act for related tort analysis.
- An attorney may be liable for the intentional tort of aiding and abetting when the attorney knowingly and deliberately provides substantial assistance to a client’s violation of a valid, enforceable court order.
- Defenses such as qualified immunity or a good-faith advice privilege do not apply where the record shows knowing facilitation of a clear, enforceable obligation rather than good-faith advice on a genuinely uncertain legal question.
- Intended beneficiaries may bring estate-planning malpractice claims only if they can prove the attorney’s negligence thwarted the client’s clear intent; where the client’s clear intent is to evade an enforceable legal obligation, that intent does not support beneficiary recovery in negligence.

## Conclusion

The Wisconsin Supreme Court enforced divorce-judgment estate obligations and permitted intentional-tort liability against an estate-planning attorney who knowingly helped a client violate such a judgment, while limiting third-party malpractice claims by requiring proof that negligence defeated the client’s clear intent—an element not satisfied where the client intended to circumvent the judgment.


Tensfeldt v. Haberman, 768 N.W.2d 641 (Wis. 2009)