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Disinherited Sister Has No Claim Against Brother’s Lawyer

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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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Robert B. Fleming


Robert Fleming is a Fellow of both the American College of Trust and Estate Counsel and the National Academy of Elder Law Attorneys. He has been certified as a Specialist in Estate and Trust Law by the State Bar of Arizona‘s Board of Legal Specialization, and he is also a Certified Elder Law Attorney by the National Elder Law Foundation. Robert has a long history of involvement in local, state and national organizations. He is most proud of his instrumental involvement in the Special Needs Alliance, the premier national organization for lawyers dealing with special needs trusts and planning.

Robert has two adult children, two young grandchildren and a wife of over fifty years. He is devoted to all of them. He is also very fond of Rosalind Franklin (his office companion corgi), and his homebound cat Muninn. He just likes people, their pets and their stories.

Elizabeth N.R. Friman


Elizabeth Noble Rollings Friman is a principal and licensed fiduciary at Fleming & Curti, PLC. Elizabeth enjoys estate planning and helping families navigate trust and probate administrations. She is passionate about the fiduciary work that she performs as a trustee, personal representative, guardian, and conservator. Elizabeth works with CPAs, financial professionals, case managers, and medical providers to tailor solutions to complex family challenges. Elizabeth is often called upon to serve as a neutral party so that families can avoid protracted legal conflict. Elizabeth relies on the expertise of her team at Fleming & Curti, and as the Firm approaches its third decade, she is proud of the culture of care and consideration that the Firm embodies. Finding workable solutions to sensitive and complex family challenges is something that Elizabeth and the Fleming & Curti team do well.

Amy F. Matheson


Amy Farrell Matheson has worked as an attorney at Fleming & Curti since 2006. A member of the Southern Arizona Estate Planning Council, she is primarily responsible for estate planning and probate matters.

Amy graduated from Wellesley College with a double major in political science and English. She is an honors graduate of Suffolk University Law School and has been admitted to practice in Arizona, Massachusetts, New York, and the District of Columbia.

Prior to joining Fleming & Curti, Amy worked for American Public Television in Boston, and with the international trade group at White & Case, LLP, in Washington, D.C.

Amy’s husband, Tom, is an astronomer at NOIRLab and the Head of Time Domain Services, whose main project is ANTARES. Sadly, this does not involve actual time travel. Amy’s twin daughters are high school students; Finn, her Irish Red and White Setter, remains a puppy at heart.

Famous people's wills

Matthew M. Mansour


Matthew is a law clerk who recently earned his law degree from the University of Arizona James E. Rogers College of Law. His undergraduate degree is in psychology from the University of California, Santa Barbara. Matthew has had a passion for advocacy in the Tucson community since his time as a law student representative in the Workers’ Rights Clinic. He also has worked in both the Pima County Attorney’s Office and the Pima County Public Defender’s Office. He enjoys playing basketball, caring for his cat, and listening to audiobooks narrated by the authors.