May 7, 2008
No Privity, No Cause Of Action
The Ohio Supreme Court has held that a beneficiary of a will may not maintain a negligence action against the attorney of the decedent for the preparation of a deed that resulted in an increased tax liability for the estate: "an attorney is not liable to third persons arising from his good-faith performance of acts on behalf of the client." The rule requiring privity to sue may only be overridden in circumstances that establish "fraud, bad faith, collusion or other malicious conduct."
A concurring opinion does not view such a cause of action for the beneficiary as creating a conflict of interest and favors accountability in will preparation: "...if presented with a different set of facts, [the concurring justice] would be in favor of revisiting [the court's] decision [in earlier cases]..." (Mike Frisch)
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