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.