ATTORNEYS FOR APPELLANTS: ATTORNEYS FOR APPELLEE:
RONALD W. FRAZIER DAVID M. HASKETT
Frazier & Associates JULIA BLACKWELL GELINAS
Indianapolis, Indiana LUCY R. DOLLENS
Locke Reynolds, LLP
Miller Tobert Muehlhausen
DANFORD R. DUE
Muehlhausen Groff & Damm, PC Due Doyle Fanning & Metzger, LLP
COURT OF APPEALS OF INDIANA
JAN W. BECKOM, GYLA BECKOM )
JANELLE Y. BECKOM, JAMIE )
BECKOM and JANA BECKOM, )
vs. ) No. 80A05-0407-CV-372
DAVID B. QUIGLEY, )
APPEAL FROM THE TIPTON CIRCUIT COURT
The Honorable Wayne E. Steele, Special Judge
Cause No. 80C01-0303-CR-80
March 24, 2005
OPINION - FOR PUBLICATION
STATEMENT OF THE CASE
Appellants-Plaintiffs, Jan W. Beckom, Gyla Beckom (Gyla), Janelle Y. Beckom, Jamie Beckom, and
Jana Beckom (collectively, the Beckoms), appeal the trial courts grant of summary judgment
in favor of Appellee-Defendant, David B. Quigley (Quigley).
The Beckoms raise two issues on appeal, which we restate as follows:
Whether the trial court erred in finding, as a matter of law, that
attorney Quigley did not owe a duty to the Beckoms because they were
unknown third-party beneficiaries under a will; and
Whether the trial court erred in finding, as a matter of law, that
Quigley did not fraudulently or tortiously interfere with the Beckoms inheritance in order
to reap a personal financial benefit.
FACTS AND PROCEDURAL HISTORY
Gyla met Gene Sellers (Gene) in 1984. Over the years, Gene frequently
visited the Beckoms home and considered them to be his family. He
purchased gifts for the family and took them on vacation, while the Beckoms
often helped Gene on his farm, located in Tipton County, Indiana. Eventually,
with financial assistance from Gene, the Beckoms moved closer to Genes farm.
In 1990, at Genes request, his attorney, Quigley, prepared a Last Will and
Testament, which was executed on December 3, 1990. In his will, Gene
left his entire estate to his father and, if his father predeceased him,
to Taylor High School and Purdue University School of Agriculture in trust and
in equal shares. Thereafter, in late 1999, Gene was diagnosed with cancer,
and on August 28, 2001, Gene executed a Durable Power of Attorney naming
Gyla and Quigley as his attorneys in fact and a Health Care Representative
Designation appointing Gyla as his health care representative. On December 6, 2001,
Quigley prepared and Gene executed a second Last Will and Testament, in which
Gene left his entire residual estate to Taylor High School and Purdue University
to provide scholarships for students. In this will, Quigley was named as
co-executor and attorney for the estate.
From the beginning of his illness, Gyla would drive Gene to the hospital
and doctor appointments. In early 2002, Gyla stopped looking for work in
order to devote more time to Gene. On several occasions, Gene would
assure Gyla that she would be well taken care of, in consideration of
all the help she was giving him. (Appellants App. p. 199).
Eventually, Gene moved in to the Beckoms home due to the severity of
his illness. In an attempt to accommodate Gene, the Beckoms changed the
plumbing and installed shower furniture. On May 30, 2002, Gene underwent brain
surgery to remove a cancerous tumor. Thereafter, Gene was released from the
hospital and started rehabilitation. However, on August 12, 2002, Gene relapsed and
was admitted to the hospital for pneumonia.
The next day, on August 13, 2002, Gyla left a message with Quigleys
assistant informing him that Gene was back in the hospital with pneumonia, and
that he wanted to speak with Quigley about inserting a provision in his
will for a gentleman to have first option in purchasing Genes farm.
Upon returning Gylas message, Quigley learned that the identity of the gentleman was
Matt Cannon (Cannon). That same day, Quigley prepared a codicil for Genes
execution, granting Cannon the first right to purchase the farm. Quigley also
arranged with Gyla to meet with Gene on August 20, 2002 at 10:00
a.m. at the hospital to review the codicil and confirm it reflected Genes
intent. However, Gene died early on August 20, 2002 prior to the
meeting with Quigley.
On March 24, 2003, the Beckoms filed their Complaint, alleging that attorney Quigley
was negligent in failing to ascertain that the Beckoms were the intended, sole
beneficiaries of Genes estate. On February 9, 2004, Quigley filed his Motion
for Summary Judgment, brief in support thereof, and designation of evidence. On
March 10, 2004, the Beckoms filed their Memorandum in Opposition and designation of
evidence. Thereafter, on March 26, 2004, Quigley filed his Response and supplemental
designation of evidence. On April 16, 2004, the trial court held a
hearing on Quigleys Motion for Summary Judgment, and took the matter under advisement.
Consequently, on June 16, 2004, the trial court entered its Order, granting
Quigleys Motion for Summary Judgment.
The Beckoms now appeal. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
The Beckoms present two issues for our review. First, they argue that
Quigley was negligent in his duty to the Beckoms, as third party beneficiaries,
by failing to ensure that they received Genes estate. Second, they claim
that Quigley fraudulently rejected the Beckoms beneficiary status in order to reap the
financial benefits that would be awarded to him by the probate court in
administering the Taylor High School and Purdue University trusts.
I. Standard of Review
Summary judgment is appropriate only when there are no genuine issues of material
fact and the moving party is entitled to a judgment as a matter
of law. Ind. Trial Rule 56 (C). In reviewing a trial
courts ruling on summary judgment, this court stands in the shoes of the
trial court, applying the same standards in deciding whether to affirm or reverse
summary judgment. Am. Family Mut. Ins. Co. v. Hall, 764 N.E.2d 780,
783 (Ind. Ct. App. 2002), trans. denied. Thus, on appeal, we must
determine whether there is a genuine issue of material fact and whether the
trial court has correctly applied the law. Id. In doing so,
we consider all of the designated evidence in the light most favorable to
the non-moving party. Id. The party appealing the grant of summary
judgment has the burden of persuading this court that the trial courts ruling
was improper. Id. Accordingly, the grant of summary judgment must be
reversed if the record discloses an incorrect application of the law to the
facts. See Ayres v. Indian Heights Volunteer Fire Dep.t, Inc., 493 N.E.2d
1229, 1234 (Ind. 1986).
We bear in mind that negligence cannot be established by inferential speculation alone.
Colen v. Pride Vending Service, 654 N.E.2d 1159, 1163 (Ind. Ct. App.
1995), rehg denied. Testimony based on conjecture or speculation is insufficient to
support a claim. Id. Qualitatively, evidence fails when it cannot reasonably
be said that the intended inference may logically be drawn therefrom. Id.
The failure of an inference may occur as a matter of law
when the intended inference can rest on no more than speculation or conjecture.
Although the question of whether a defendant has breached a duty is a
question of fact for the jury, the existence of a duty is generally
a question of law for the court to determine. Geiersbach v. Frieje,
807 N.E.2d 114, 122 (Ind. Ct. App. 2004), rehg denied, trans. denied.
Here, the question before us is whether Quigley owed a duty to the
Beckoms. This is a question of law, not a question of fact,
and is therefore properly considered under a motion for summary judgment.
The Beckoms initially dispute the trial courts Order finding, as a matter of
law, that attorney Quigley did not owe a duty to the Beckoms pursuant
to a negligence claim because they were unknown third-party beneficiaries under a will.
As their main argument, the Beckoms allege that there is sufficient evidence
imputing that Quigley had actual knowledge of Genes intent to leave his estate
to the Beckoms.
The parties correctly acknowledge that to premise a recovery on a theory of
negligence, the moving party needs to establish three elements: (1) a duty
on the part of the defendant to conform his conduct to a standard
of care arising from his relationship with the plaintiff, (2) a failure of
the defendant to conform his conduct to the requisite standard of care required
by the relationship, and (3) an injury to the plaintiff proximately caused by
the breach. Webb v. Jarvis, 575 N.E.2d 992, 995 (Ind. 1991), rehg
Whether the law recognizes any obligation on the part of a particular defendant
to conform his conduct to a certain standard for the benefit of the
plaintiff, three factors must be balanced: (1) the relationship between the parties;
(2) the reasonable forseeability of harm to the person injured, and (3) public
policy concerns. Id. Thus, our analysis must examine each of these
three factors in turn to determine if Quigley owed a duty to the
1. Relationship between Quigley and the Beckoms
The heart of the present case concerns attorney Quigleys actions, or absence thereof,
in determining Genes testamentary intent regarding the disposal of his estate. Thus,
duty being the threshold requirement for a negligence claim, the Beckoms must first
prove the existence of a relationship with Quigley. See Hacker v. Holland,
570 N.E.2d 951, 955 (Ind. Ct. App. 1991), rehg denied. This relationship
need not be express; it may be implied from the conduct of the
However, unlike the Beckoms, in the context of a will, we find Walker
v. Lawson, 526 N.E.2d 968 (Ind. 1988) to be controlling. In Walker,
our supreme court clearly held that the breach of an attorney in drafting
a will for a client can become the basis for a claim by
a known beneficiary who suffers injury as a consequence of that breach.
Id. at 698; see also Webb, 575 N.E.2d at 996 (holding that a
professional owes no duty to third persons unless the professional had actual knowledge
that those persons would rely on his rendering of professional services); Essex v.
Ryan, 446 N.E.2d 368,374 (Ind. Ct. App. 1983) (holding that a duty may
be owed to a beneficiary of a consensual relationship, akin to that of
a third-party beneficiary of a contract, where the professional has actual knowledge that
the services being provided are, in part, for the benefit of such third
persons). In Walker, attorney Lawson drafted a will for his client, making
his clients children from her first marriage the sole beneficiaries of her estate,
to the exclusion of her second childless spouse. See Walker, 526 N.E.2d
at 968-69. The supreme court based its holding on the existence of
evidence establishing the clients explicit purpose to meet with her attorney to deprive
her spouse of any interest in her estate. See id. at 969.
The court further noted that there was little doubt that attorney Lawson
and the client discussed the omission of her spouse to the benefit of
her children. See id. After the clients death, her spouse elected
to take his statutory interest in the estate, resulting in a malpractice claim
against the attorney by one of the children. See id. Since
our supreme court determined the child to be a known beneficiary under the
will, he could file a complaint sounding in negligence against Lawson. See
Based on our review of the designated evidence, we conclude that Quigley never
knew that the Beckoms were intended beneficiaries under Genes will. Unlike Walker,
where the testator had clearly identified the beneficiaries and the omitted parties under
the will to her attorney, here, Gene never informed Quigley that the Beckoms
should be included as beneficiaries of his estate. Rather, the instant case
is built upon the mere speculation that Gene wanted to change his will
to the advantage of the Beckoms.
The Beckoms present us with an abundance of evidence indicating that Gene wanted
to make changes to his will and was attempting to get in contact
with Quigley prior to his death. Based on conversations between the Beckoms
and Gene around Gylas kitchen table, the Beckoms believed this change involved Gyla
inheriting Genes farm because he wanted to take care of the family.
However, the record is devoid of any evidence establishing that Quigley was informed
of this intended change. As Gyla clearly admitted, she never told Quigley
that Gene intended to leave the farm to her. Even though the
Beckom family testified that on several occasions they dialed Quigleys office number on
Genes behalf, they added that they never talked to Quigley themselves, but always
handed the phone to Gene and then left the room. They also
stated they cannot confirm that Gene actually talked to Quigley during those calls.
Moreover, our conclusion today is further supported by the timeline of events in
this case. After Gene was diagnosed with cancer in late 1999, Gyla
helped Gene by driving him to the hospital and doctor appointments. As
his illness progressed, Gyla increased her aid to the point where she ceased
searching for new employment in order to take care of Gene. In
exchange, Gene trusted Gyla by giving her a power of attorney and naming
her his heath care representative in August of 2001. Nevertheless, when Gene
executed his second will six months later, on December 6, 2001, he left
his residual estate to Taylor High School and Purdue University without even including
a provision for the Beckoms. After his surgery in May of 2002,
Gene moved in with the Beckoms. The record discloses that sometime between
July 28 and August 13, 2002, seven days prior to his death and
eight months after the execution of his second will, Gene stopped by Quigleys
office. Asked by Quigley if Gene wanted to speak to him, Gene
responded negatively and stated that he just stopped by to say hello.
Even though the Beckoms allege that everybody in their community knew Gene wanted
to take care of them, we refuse to equate general community knowledge to
actual knowledge by Quigley without anymore more than mere speculation. See Colen,
654 N.E.2d at 1162.
The Beckoms, however, now try to circumvent Walkers actual knowledge of a third-party
beneficiary element by claiming that a direct relationship between Quigley and the Beckoms
was established because Quigley and Gyla held co-powers of attorney. Although we find
the argument to be creative, we are not persuaded. Pursuant to Indiana
Code section 30-5-5-15, an attorney in fact is authorized to do the following:
(1) Accept, receipt for, exercise, release, reject, renounce, assign, disclaim, demand, sue for,
claim, and recover a legacy, bequest, devise, gift, or other property interest or
payment due to or payable to or for the principal.
(2) Assert and interest in and exercise power over a trust, an estate,
or property subject to fiduciary control.
(3) Establish a revocable trust solely for the benefit of the principal that
terminates at the death of the principal.
(4) Exercise all powers with respect to estates and trusts the principal could
exercise. However, the attorney in fact may not make or change a
Under the statute, an attorney in fact shall use due care to act
for the benefit of the principal. I.C. § 30-5-6-2.2. Foreseeability
Here, it is undisputed that Gene was the principal of the estate.
Therefore, both Quigley and Gyla, as attorney in fact under the power of
attorney, had a duty of care to act for Genes benefit within the
scope of the executed power of attorney. The statute is silent as
to the creation of a duty between the co-attorneys in fact. Rather,
Indiana Code section 30-5-4-3(a) stipulates that if more than one (1) attorney in
fact is named, each attorney in fact may act independently of the other
attorney in fact in the exercise of a power or duty. Accordingly,
based on the clear statutory language, we find that a power of attorney
only creates a duty of care between an attorney in fact and the
principal of the trust or estate; no relationship, let alone a duty, is
created between co-attorneys in fact.
Next, the Beckoms attempt to extend Walker and Webb by claiming that they
can survive a motion for summary judgment by proving that Quigley should have
known that the Beckoms were intended beneficiaries under Genes will. (Appellants Br.
p. 15). In particular, the Beckoms allege that Quigley knew Gene was
near the end of his life and thus should have acted immediately when
Gyla notified Quigley that Gene wanted to change his estate plan instead of
setting up a meeting seven days later. In essence, the Beckoms claim
that if Quigley had performed his duty by acting in a reasonable manner,
he would have learned that Gene intended to leave the farmstead to the
Beckoms and, accordingly, the Beckoms would be the known third-party beneficiaries under the
However, the Beckoms argument fails to distinguish between the duty of care, which
includes a duty to establish Genes testamentary intent, owed by Quigley to his
client Gene, now his estate, and the duty owed by Quigley to the
Beckoms because of their purported status as known third-party beneficiaries. Nevertheless, as
our supreme court has held in Walker, only a known third-party beneficiary under
a will can institute a negligence claim against the attorney-drafter of the will.
See Walker, 526 N.E.2d at 969. Only in such circumstances will
the attorney be able to identify the persons directly affected by his services
so that he may undertake the proper duty of care towards them.
Here, we concluded above that the Beckoms are not known third-party beneficiaries, and
therefore, they cannot file a negligence claim against Quigley. See id.
Thus, based on the evidence before us, and in the absence of reasonable
inferences that attorney Quigley actually knew that Gene wanted the Beckoms to inherit
his farm, we cannot do anything else but affirm the trial courts grant
of summary judgment. See Colen, 654 N.E.2d at 1163. To reverse
the trial court and allow the Beckoms to survive summary judgment based on
mere speculation that Gene intended to leave them the farmstead would drastically extend
Indiana case law by allowing a third party to file a complaint based
in negligence against the attorney-drafter of the will despite the lack of any
clear evidence that the testator had communicated his intent to the attorney to
confer a benefit on the third party. Such a result would unlock
the floodgates of malpractice litigation for an unidentifiable and overly broad class of
persons. Accordingly, in line with our supreme courts holding in Walker, we
conclude that the existence of a relationship necessary to impose a duty on
Quigley is lacking.
Next, the Beckoms contend that there is a reasonable forseeability of harm because
Quigley knew that the services he was rendering for Gyla were performed for
the benefit of the Beckom family. Specifically, the Beckoms claim that Gylas
notification of Quigley that Gene wanted to change certain testamentary provisions put Quigley
on notice that the Beckoms would become beneficiaries under Genes will. We
In analyzing the forseeability component of duty, we focus on whether the person
actually harmed was a foreseeable victim and whether the type of harm actually
inflicted was reasonably foreseeable. Webb, 575 N.E.2d at 997. In the
instant case, the record shows that the only communication made to Quigley involved
Genes purported intent to grant Cannon a right of first refusal to buy
his farm. As we stated before, the record is devoid of any
evidence that Quigley was alerted of Genes intent to benefit the Beckoms by
leaving them the farm. Therefore, we conclude that the Beckoms were not
reasonably foreseeable victims. See id.
3. Public Policy
Duty is not sancrosanct in itself, but is only an expression of the
sum total of those considerations of policy which lead the law to say
that the plaintiff is entitled to protection. Id. Here, we find
that public policy considerations weigh heavily against extending our supreme courts holding in
Walker and applying it to intended third-party beneficiaries under a will. An
attorneys first duty is toward his client. Were we to impose a
duty on an attorney to consider the risk of harm to unknown third
persons before drafting a will in accordance with his clients wishes, we would
be forcing the attorney to weigh the welfare of unknown persons against the
duty of care to his client. This course would result in attorneys
being reluctant to draft a will for fear of being subject to a
suit by an unknown third-party claiming an interest in the estate even though
the client-testator never even alluded to the existence of these individuals as possible
beneficiaries under his will. This we will not do.
4. Balancing of the three factors
In balancing the three elements constituting a duty, i.e., a relationship between Quigley
and the Beckoms, forseeability, and public policy, we must conclude that Quigley did
not owe a duty to the Beckoms. See Webb, 575 N.E.2d at
B. Standard of Care and Proximate Cause
Besides the existence of a duty of care, in order to recover on
a theory of negligence, the Beckoms also have to establish that Quigley failed
to conform his conduct to the requisite standard of care and that the
Beckoms injury was proximately caused by the breach. See id. However,
since we already established the absence of a duty of care owed by
Quigley to the Beckoms, we do not need to address the other two
elements of a negligence action. Consequently, we affirm the trial courts grant
of summary judgment in favor of Quigley.
III. Fraudulent or Tortious Interference with Inheritance
Lastly, the Beckoms contend that because Quigley served as Genes attorney and co-executor
of his will, the inference can be made that Quigley purposely set the
estate up this way in order to tally up numerous billable hours by
spreading the will through probate and assisting Purdue and Taylor High School in
establishing their trusts. (Appellants Br. p. 27). To that end, the
Beckoms maintain, Quigley fraudulently sabotaged Genes intent in naming the Beckoms as his
beneficiaries in order to further his own financial gain.
Pursuant to Indiana Trial Rule 9(B), fraud must be pled with specificity, including
the time, place, substance of the false representations, and an identification of what
was procured by fraud. See Weber v. Costin, 654 N.E.2d 1130, 1134
(Ind. Ct. App. 1995). A complaint which does not satisfy these requirements
fails to state a redressable claim. Id. Our review of the
record reflects that the Beckoms Complaint only sounds in negligence and lacks any
references to a fraud claim. Furthermore, we note that the first time
the Beckoms asserted a basis for a fraud claim was during the hearing
on Quigleys Motion for Summary Judgment; and even then, the claim was made
in very general terms only, lacking all required specificity. In particular, Beckoms
But again, if you enter judgment in their favor, youre saying to the
lawyers, well just look out for your own well being and this is
a situation which the jury could look at the evidence and they could
say, hey well, the reason he didnt get the [w]ill changed is because
[Quigley] was just looking out for his own well being, because the [w]ill
says that [Quigley] is supposed to be [c]o-[e]xecutor of the estate and in
addition to that, your Honor, the [w]ill says that [Quigley] is supposed to
be the attorney that gets the [w]ill probated. Now I just went
to an ICLEF seminar about a month ago and all the presenters were
in unison and they said, well we really dont, theres no published decision
on this, but we really think its very bad [. . . ]
practice to put your own name in a [w]ill. It could be
viewed as solicitation. So [Quigley] has a financial interest in this, in
the outcome of this thing just the way it is. I dont
know what inferences the jury will draw from that but those facts are
(Appellants App. pp. 27-8). Accordingly, since the Beckoms did not plead fraud
with specificity in their Complaint, they fail to state a redressable claim.
Based on the foregoing, we find that as a matter of law, attorney
Quigley did not owe a duty to the Beckoms because they were unknown
third-party beneficiaries under a will. We further find that the Beckoms fail
to state a redressable claim with respect to their allegation that Quigley fraudulently
interfered with the inheritance in order to reap a personal financial benefit.
Therefore, we hold that the trial court properly granted summary judgment as a
matter of law in favor of Quigley.
CRONE, J., and ROBB, J., concur.