Smith v. O'Donnell (Tex. 2009), No. 07-0697 (Tex. Jun. 26, 2009)(O'Neill)(legal malpractice
suit by executor against attorney of decedent on claim outside the scope of estate planning)(probate
law, legal liability exposure of attorney who advised the deceased; gross negligence, malice issues, strict
standard for proving malice not met)
PAUL H. SMITH, ET AL. v. THOMAS O'DONNELL, EXECUTOR OF THE ESTATE OF CORWIN DENNEY;
from Bexar County; 4th district (04-04-00108-CV, 234 SW3d 135, 07-25-07) 2 petitions
The Court affirms the court of appeals' judgment.
Justice O'Neill delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Brister, Justice
Medina, and Justice Johnson joined. [11-page opinion in pdf]
Justice Willett delivered a dissenting opinion, in which Justice Wainwright joined. [pdf]
(Justice Hecht and Justice Green not sitting)
View Electronic Briefs in Smith v. O'Donnell (Tex. 2009)
NEWS AND BLOG ITEMS FOR THIS CASE:
Texas Supreme Court Resurrects Executor's Legal-Malpractice Claim (TEXAS LAWYER 7/6/2009)
EXCERPT FROM THE SUPREME COURT'S OPINION:
In Belt, we held that an executor was in privity with the decedent’s attorneys and could sue them for
estate-planning malpractice. 192 S.W.3d at 787. A prior case, Barcelo v. Elliott, 923 S.W.2d 575
(Tex. 1996), barred estate-planning legal malpractice claims brought by third-party beneficiaries of
the estate. This case asks us to consider whether an executor may bring suit against a decedent’s
attorneys for malpractice committed outside the estate-planning context. We hold that the executor
should not be prevented from bringing the decedent’s survivable claims on behalf of the estate, and
affirm the court of appeals’ judgment.