Barcelo v. Elliott
923 S.W.2d 575, 39 Tex. Sup. Ct. J. 607 (1996)

  • Barcelo hired Elliott to draft a will and set up an inter vivos trust. It held money in a trust while Barcelo was alive, and then gave some of the estate to her children, some to her siblings, and some to her grandchildren.
  • Barcelo died, and two of her children contested the will and had it declared to be invalid and unenforceable.
    • Barcelo’s grandchildren eventually had to settle for much less than they would have received if the trust had been valid.
  • Barcelo’s grandchildren sued Elliott for legal malpractice because he messed up the will.
  • The Trial Court found for Elliott in summary judgment. Barcelo’s grandchildren appealed.
    • The Trial Court fond that Elliott owed no duty to Barcelo’s grandchildren, since they were never his clients.
  • The Appellate Court affirmed. Barcelo’s grandchildren appealed.
    • The Appellate Court found that Elliot owed no duty to the beneficiaries of the will.
  • The Texas Supreme Court affirmed.
    • The Texas Supreme Court found that in the common law, an attorney owes a duty of care only to their client, not to third parties who may have been damaged by the attorney’s negligent representation of the client.
      • Barcelo’s grandchildren unsuccessfully argued that there should be an exception.
    • Barcelo’s grandchildren might have an argument based on the third party beneficiaries concept in Contract Law, but in Texas, legal malpractice is strictly a Tort Law issue.
  • In a dissent, it was argued that Barcelo’s grandchildren were the ones damaged by Elliott’s malpractice, and Barcelo is in no position to sue, so should the courts allow Elliott to get away with his bad behavior?
    • Errors are unlikely to be found until after death, and the estate itself doesn’t suffer a harm if the will was drafted poorly. So shouldn’t someone have the right to sue, just to provide some accountability?