Wednesday, May 21, 2008

Review granted in 'Tensfeldt v. Haberman'

The Wisconsin Supreme Court has granted review in this case. (2007AP1638)
This certification from the District IV Court of Appeals involves questions about estate planning services provided by two attorneys and their law firms.

(see this earlier post)
Some background: Robert and Ruth Tensfeldt, who had three adult children, divorced in Wisconsin in 1974. The divorce judgment incorporated a stipulation in which Robert agreed to execute and keep in effect a will “leaving not less than two-thirds of his net estate outright to the three adult children of the parties, or to their heirs by right of representation.”

One attorney is alleged to have negligently failed to provide the client relevant advice about the effect of Florida law on estate plans, while the other attorney is alleged to have aided and abetted the client in violating a stipulated provision of a Wisconsin divorce judgment requiring that he execute and maintain a will in his adult children’s favor.

The Court of Appeals asks the Supreme Court to examine, among other things, whether a trial court has authority to incorporate into a divorce judgment a stipulation requiring a party to maintain a will in favor of an adult child.

If the trial court has such authority, the Court of Appeals asks if such a stipulation is then enforceable only as a judgment or as a contract to make a will, or both. Also, should an attorney who advises the client that the will could potentially be challenged as a breach of contract, be excused from any third party liability under either a qualified immunity theory or some other good faith advice defense?

A decision by the Supreme Court could clarify issues not readily resolved by existing law. From Dane County.