Malpractice Claim Against Estate Planner Time Barred

A Kansas appeals court rules that because an estate's malpractice claim against an attorney who prepared estate documents is grounded in tort law and the injury did not occur during the decedent's lifetime, the cause of action did not survive the decedent's death. Jeanes v. Bank of America  (Kan. Ct. App., No. 97,855, Aug. 29, 2008).

Maxine J. Anton's estate paid about half its $39 million value in estate and inheritance taxes. In her capacity as administrator of the estate, Ms. Anton's niece Janet J. Jeanes sued the trustee of her aunt's living trust and attorney Sharon Kunard, who had prepared estate documents. Ms. Jeanes advanced claims of breach of fiduciary duty and negligence against Ms. Kunard, allegedly requiring the estate to pay unnecessary taxes.

Ms. Kunard and the other defendants moved for summary judgment. The trial court granted the defendants' motions, finding that because the estate's claim was not based on a breach of an alleged agreement of the parties, but rather on a breach of an alleged legal duty, the claim sounded in tort and not in contract. Accordingly, because the injury -- the imposition of unnecessary taxes on the estate -- occurred after Ms. Anton's death and was personal to her, it did not survive her death. Ms. Jeanes appealed.

The Kansas Court of Appeals affirms. The court finds that the malpractice claim was grounded in tort, and because the injury occurred after Ms. Anton's death, the cause of action did not survive her death.

For the full text of this decision, go to: http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2008/20080829/97855.htm.