APPEAL FROM THE MARION SUPERIOR COURT, ROOM NO. 6, The Honorable Edward Madinger, Judge, Cause No. S685-045.
Buchanan, J., Shields, P.j., and Sullivan, J., concur.
Appellant-plaintiff Shawn Eric Walker (Walker) appeals the trial court's grant of summary judgment for appellee-defendant John W. Lawson (Lawson), claiming that the trial court erred in concluding that an attorney who drafts a will owes no fiduciary duty to the beneficiaries; in determining that there was no genuine issue of material fact; and that Lawson was entitled to judgment as a matter of law.
The facts most favorable to the non-moving party (Walker) indicate that in the spring of 1980, Sybille Willard (Sybille), the mother of Walker, learned that she had cancer and approached Lawson, an attorney, about the Disposition of her estate. At that time, Sybille was married to Thomas Willard (Thomas), a second childless spouse. Sybille had two sons by her first husband, one of whom was Walker. The bulk of the estate consisted of a single family residence located in Marion County, Indiana, derived from life insurance proceeds received from the death of her first husband.
Lawson suggested to Sybille that she could use a will to distribute all of her assets to her two minor sons. Walker's Complaint alleged that Lawson failed to advise Sybille that Thomas could elect to take against the will and receive a statutory share of one-third of the net personal estate of Sybille plus a life estate in one-third of her real estate. In his Answer, Lawson denied that he failed to properly advise Sybille.
A will was prepared by Lawson for Sybille providing that the entire estate pass in trust for the benefit of Sybille's two sons. The will contained a clause indicating that Thomas was purposely omitted from any devise as he would be benefiting from the residence during her lifetime and would be allowed to occupy the residence as the guardian of her two sons. Record at 24.
Sybille died on October 28, 1980. Subsequent thereto, Lawson prepared a document by which Thomas elected to take against the will and receive his statutory share.
The trial court found that there was no genuine issue as to any material fact and that Lawson was entitled to judgment as a matter of law.
As we reverse, we deem it necessary to consider only these two issues.[Footnote 1]
1. Did the trial court err in concluding that there was no genuine issue as to any material fact and that Lawson was entitled to judgment as a matter of law?
2. Did the trial court err in concluding that an attorney who drafts a will owes no fiduciary ...