The Law School Authority

Ginther v. Zimmerman Case Brief

Summary of Ginther v. Zimmerman, 195 Mich.App. 647 (1992)

Facts: Mrs. Shippey had Df atty draft a will leaving Pl’s parcel of property (original purchase).  After execution she told the Pls that she had decided to immediately convey the parcel and instructed Df atty Rollert to effectuate that intent, reserving a life estate for her in the house and a small portion, (homestead).  A year later Df atty Kuhn field a deed conveying the original to Pls less the homestead, but that deed omitted life estate condition.  One year later Ms. Shippey executed her last known will as prepared by atty Zimmerman, which did not convey the homestead parcel to Pls.  6 years later she passed away.

Issue: Whether persons claiming to be intended beneficiaries of a will can maintain an action against the attorney who drafted the will where no atty-client relationship existed between them?

Holding: No, where the intent of the testator as expressed in the instrument is not frustrated, an attorney owes no duty that will give rise to a COA to person not named in the instrument.

Procedure: Circuit Ct granted Df summary. Pl’s appealed.  Mich. Ct of App. Affirmed.

Rule: An atty-client relationship is a necessary element for an action based on legal malpractice.

Rationale: Only a person in the privity of an atty-client relationship can sue for malpractice. The purpose is to prevent consideration of interests of those outside of the relationship from interfering with the atty’s duty to loyally represent a client. Public policy requires that to maintain a vigorous adversarial system outweighs advantages of finding that a duty of care extends to an atty’s legal opponent.  Other cts have found that a COA may issue where the atty was instructed to include the intended beneficiaries and he failed to do so, or if the intended beneficiaries received less than the testator intended b.c the testator’s purpose was to benefit the beneficiaries through the atty’s work in drafting the will. There is only one case allowing such a COA for an unnamed beneficiary, this court disagrees with that holding.

Pls did not claim they were named in the will or that the testator’s intent, as expressed in the instrument, was frustrated.

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