Walter Heine never married and never had children. His closest relative was his sister, Alma Francis. In 1987, after Mr. Heine suffered a stroke, the Minnesota courts appointed a conservator to handle his money. Before his stroke, Mr. Heine had never gotten around to making out a will. Beginning four years after the conservator was appointed, he changed that.

Mr. Heine first met Linda Resick when she waited on him at a delicatessen he frequented. In 1991, Ms. Resick referred Mr. Heine to a lawyer she knew, and shortly thereafter he signed the first of three wills he would execute before his death.

That first will left all of Mr. Heine's estate to his church. The second will left $20,000 to Ms. Resick and the balance to the church. The third and final will left everything to Ms. Resick. When Mr. Heine died the last will was filed for probate.

If Mr. Heine had never signed a will, his sister Alma Francis would have received his entire estate. Reasoning that he had a conservator at the time, and therefore he was incompetent, Ms. Francis challenged the wills.

After negotiations between the two women, they agreed that Ms. Resick (the waitress) should receive $80,000 of Mr. Heine's estate, with the balance going to Ms. Francis. Once that matter, was settled, Ms. Francis made a claim against the lawyer who drafted the three wills, LaMar Piper.

Ms. Francis argued that Mr. Piper should have been able to see that Mr. Heine was incompetent, particularly in light of the fact that a conservator had been appointed. It was malpractice, she argued, for Mr. Piper to prepare a will for her brother when he was so clearly incompetent. She sought to recover the $80,000 she had agreed to pay to Ms. Resick from the lawyer.

Mr. Piper argued that Ms. Francis was not his client, and he owed no duty to protect her from any damages he might cause even if he had committed malpractice. The client was Walter Heine, and Mr. Heine had not been injured by the legal representation, regardless of how his surviving sister saw the issue. Mr. Piper asked that the lawsuit be dismissed, and the trial judge did just that. Ms. Francis then appealed.

The Minnesota Court of Appeals agreed that Mr. Piper owed no duty to Ms. Francis. She might be able to bring an action, ruled the justices, if she could show that Mr. Heine intended to benefit her and that Mr. Piper's actions somehow frustrated that intent; in this instance the opposite was clearly the case, since the evidence indicated Mr. Heine knew the wills would prevent his sister from receiving any portion of the estate. Francis v. Piper, August 3, 1999.

Mr. Heine's case raises two interesting questions:

1. Can a person write a will, even if a guardian or conservator has been appointed? The answer is a very strong "maybe." The specifics of each case will determine the capacity of the ward to write a will, but most states make it clear that having a guardian or conservator does not prevent one from writing a valid will. Arizona has specifically agreed with that principle.

2. Can a disinherited relative sue the lawyer for preparing an allegedly invalid will? In most states, no. The requirement that the disinherited person be the "intended beneficiary" of the legal representation will be very hard to overcome. Arizona law is unsettled on this point.
 
  

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