The July-August 2026 issue of Wisconsin Lawyer included an article describing a “storm surge” of probate, trust, and fiduciary litigation coming to Wisconsin courts. The authors pointed to an unprecedented transfer of wealth, an aging population, and increasingly complicated family relationships as forces likely to drive more disputes among beneficiaries and family members.^[1]

At Wisconsin Lawyers Mutual Insurance Co. (WILMIC), we see that storm from a different vantage point. We see the malpractice claims that can follow when an estate plan does not accomplish what someone expected — or when someone who was never the lawyer’s client believes the lawyer’s work caused them harm.

That was one reason WILMIC devoted its 2026 summer CLE program to third-party liability in estate planning and related ethical considerations for its policyholders. I participated in the program with attorneys Brian Anderson and Monte Weiss. The discussion reinforced a simple risk-management principle: Estate planning lawyers need to be able to explain, years later, whom they represented, what they were asked to do, what the client decided, and what the final documents accomplished.

A recent Wisconsin case defended by Attorney Weiss provides a useful illustration.

A Case About Intent, Documents, and Duty

The case involved an estate planning attorney who was sued by a plaintiff who was not the attorney’s client. The plaintiff alleged that the attorney’s work on estate planning documents interfered with what the plaintiff believed the deceased intended to accomplish.

The plaintiff had been in a long-term relationship with the decedent (the settlor). They owned a property as joint tenants with a right of survivorship. The settlor hired an estate planning attorney. A trust was created, and the attorney drafted two deeds to transfer the settlor’s and the plaintiff’s interests in the property to tenants in common. The settlor then transferred his interest in the property to the trust. The plaintiff was given the right to live in the property for a set period. After the settlor passed away, the plaintiff sued the settlor’s attorney, claiming that the trust changed her interest in the property and that this was contrary to the settlor’s intent.

Weiss approached the defense from a threshold question: Did Wisconsin law recognize a cause of action by this nonclient on these particular facts? His briefing on a motion to dismiss examined Wisconsin’s general rule that an attorney ordinarily does not owe professional duties to third parties, along with the limited estate planning exceptions recognized in Auric v. Continental Casualty Co. and its progeny.^[2] In Auric, the Wisconsin Supreme Court recognized an exception permitting a will’s beneficiary to sue the attorney responsible for negligent drafting or supervision of the will’s execution, even though the beneficiary was not in privity with the attorney.^[3]

Subsequent cases have emphasized how narrow that exception is. In Beauchamp v. Kemmeter, for example, the Wisconsin Court of Appeals held that a third party could not sue the drafting attorney based merely on extrinsic evidence that the decedent intended the third party to receive property; the plaintiff had to be named in an executed or unexecuted will or similar estate planning document.^[4] In Tensfeldt v. Haberman, the Wisconsin Supreme Court again emphasized the narrow nature of the Auric exception and stated that “[t]he third-party beneficiary must be able to establish that the attorney’s failure thwarted the decedent’s clear intent.”^[5]

The plaintiff in the case Weiss defended also relied on Wisconsin Academy of Sciences, Arts & Letters v. First Wisconsin National Bank (In re Revocable Tr. of McCoy), a 1987 court of appeals decision involving a trust.^[6] That case requires some explanation. McCoy did apply the Auric principle to a trust, but the alleged negligence involved a trustee’s fiduciary responsibilities in administering the trust, including a failure to act on information concerning the settlor’s intent. It was not a malpractice claim against an attorney based on the drafting of a trust or deed. That distinction was central to Weiss’s argument.

The circuit court ultimately agreed with the defense and dismissed the complaint for failure to state a claim.^[7] The case does not establish that estate planning attorneys are immune from claims by nonclients. It remains to be seen whether the supreme court would extend the holding of Auric to an attorney’s drafting of a trust. McCoy does, however, illustrate the narrow holding in Auric and the importance of carefully examining the law and facts before getting lost in the merits of a family dispute.

The question is not simply, “Did I draft this document correctly?” It is also, “Does the entire plan accomplish what the client asked me to accomplish?”

Managing Risk in Family Matters

1. Start by Defining the Client. One of the simplest risk-management measures is also one of the most important: clearly identify whom you represent.

That can become difficult when spouses, children, trustees, beneficiaries, or other family members participate in meetings. Their presence does not necessarily make them clients. A lawyer should be able to look at the file years later and answer basic questions:

• Who retained me?

• Whose interests did I represent?

• What was the scope of the engagement?

• Who provided information?

• Who received legal advice?

• Who participated in the process but was not a client?

An engagement letter can establish these boundaries. So can consistent communication and conduct throughout the representation. If a child attends a parent’s estate planning meeting, for example, the lawyer should avoid creating the impression that the child is receiving independent legal advice. Clarity at the beginning can become crucial later if someone argues that the lawyer owed them a duty.

2. Put Important Client Decisions in Writing. Estate planning often involves difficult decisions. A client may leave one child more than another, exclude someone from an inheritance, make a gift outside the immediate family, or choose a planning strategy that relatives will not understand. Those decisions are not, by themselves, evidence of malpractice. But they can become the subject of litigation.

The best risk management is often contemporaneous documentation showing that the lawyer understood the client’s wishes and that the client made an informed decision. If a client rejects a recommendation, changes a beneficiary, chooses unequal distributions, or decides not to complete part of an estate plan, document the decision and the advice provided to create an accurate record of the client’s decisions while memories are fresh. Years later, that record may be far more reliable than anyone’s recollection of a conversation.

3. Remember That the Deed May Matter as Much as the Trust. One of the most instructive aspects of the case Weiss defended involved real estate. The plaintiff’s theory depended in part on the deed’s effect. Weiss’s response focused on causation: The ownership change alleged by the plaintiff was accomplished by the deed, not by the trust.

This is an important estate planning lesson. Lawyers may focus heavily on the will or trust while overlooking the documents that transfer or retitle assets. But an estate plan is only as effective as the coordination among its parts. When a client establishes a trust, the lawyer should emphasize that assets intended for the trust must be transferred to it, and the lawyer and client must decide who will transfer the assets. When real estate is involved, the lawyer should understand what the deed accomplishes. Beneficiary designations, account registrations, business interests, and other assets may require separate follow-through.

4. Do Not Let Oral Intent Substitute for the Document. Estate planning lawyers routinely hear clients describe what they want to accomplish. That conversation is essential, but the lawyer ultimately must translate those wishes into legally effective documents. A client might say, “I want my daughter to have the house,” while the deed, trust, beneficiary designation, or other operative document states something different. That creates risk. Lawyers should compare the client’s stated objectives with the documents being prepared and explain, in understandable terms, what those documents accomplish. This becomes particularly important when multiple documents interact. The question is not simply, “Did I draft this document correctly?” It is also, “Does the entire plan accomplish what the client asked me to accomplish?”

5. Be Especially Careful When Someone Is Being Left Out. Unequal treatment among family members is not inherently problematic. Clients have the right to make their own estate planning decisions. But when a client intentionally reduces or eliminates an expected beneficiary’s inheritance, that decision deserves careful attention. The lawyer should make sure the client understands the consequences and that the file reflects the client’s wishes.

Depending on the circumstances, the lawyer also might need to consider capacity, undue influence, family dynamics, and whether additional planning techniques or documentation would be appropriate. The objective is not to create evidence to defend a future lawsuit. It is to create an accurate record of what happened while the client is available to explain the decision.

For example, it can be very helpful to send the draft of the estate planning documents to the client. Ask the client to review and make any changes in writing and then return the marked-up copy to you. Maintain this client-marked-up copy. It is perhaps the best evidence of the intent of the client as to the disposition of the client’s property. Once the marked-up copy is returned, send the revised version with the changes to the client for approval before execution, along with a cover letter memorializing the revisions. This “belt and suspenders” approach can help document the client’s intentions and serve to defeat a claim that the attorney failed to effectuate the client’s intended disposition of property.

6. Know When You Are Out of Your Depth. Estate planning can look deceptively familiar. A lawyer who primarily handles real estate, business transactions, family law, or general litigation may encounter a client who needs a will or trust and believe the task is straightforward. But estate planning frequently implicates specialized issues related to tax consequences, trust administration, property ownership, beneficiary designations, and execution requirements. Competence is a risk-management issue. If the matter is outside the lawyer’s experience, the answer may be to study the issue, associate with someone who has the necessary expertise, or refer the client elsewhere.^[8] Recognizing when additional expertise is needed is part of competent representation — and good claims prevention.

7. Follow Through After the Documents Are Signed. Execution is not necessarily the end of the estate planning process. The lawyer may need to confirm that assets were retitled, beneficiary designations were updated, deeds were recorded, or trust funding was completed. If the client chooses not to complete a recommended step, that decision might warrant documentation. Likewise, if a representation ends with unfinished work, a clear termination-of-engagement communication can identify what remains incomplete and which steps the client should consider taking. A beautifully drafted estate plan that is never implemented might not accomplish the client’s objectives.

8. Communicate Clearly, Especially About Difficult Issues. Finally, communication remains one of the best forms of malpractice prevention. Estate planning involves complicated legal concepts, but clients do not need a lecture on every technical rule. They need to understand the decisions they are making and the consequences that matter to them.^[9] That means explaining important limitations in plain language. It also means communicating when a recommendation changes, additional work is necessary, something has gone wrong, or the lawyer believes the client is making a risky choice. Those conversations can be uncomfortable. But a difficult conversation today is generally preferable to a difficult deposition years from now.

What the Case Does and Does Not Teach

The circuit court’s decision in the case defended by Weiss is useful because it illustrates the importance of carefully analyzing the legal foundation of a third-party claim. It should not be read as a blanket rule that estate planning attorneys can never face liability to nonclients.

Wisconsin law recognizes a limited exception to the general rule of attorney nonliability, and the supreme court has extended that exception beyond will drafting to certain claims involving estate administration. In MacLeish v. Boardman & Clark LLP, the court held that a nonclient who is a named beneficiary in a will may pursue a malpractice claim based on negligent administration of an estate if the attorney’s negligence thwarted the testator’s clear intent.^[10] But MacLeish also emphasized the exception’s narrow scope. The supreme court rejected an invitation to broadly expand third-party liability and reiterated that the purpose of the exception is to protect a decedent’s clearly expressed testamentary intent.^[11]

That makes the distinction that Weiss drew particularly useful for risk management. McCoy involved a trustee’s alleged failure to fulfill fiduciary responsibilities in administering a trust. MacLeish involved administration of a will. The case Weiss defended involved a claim against an attorney arising from the drafting and effect of estate planning documents. Those distinctions matter.

For lawyers, the broader lesson is this: When a nonclient claim arises, one of the first questions should be whether the law recognizes a professional duty to the person bringing the claim.

Building Better Seawalls

The “storm surge” metaphor is a good one. Wisconsin lawyers can expect continued litigation involving probate, trusts, fiduciaries, and family disputes as substantial wealth passes from one generation to the next. We cannot prevent every storm. But we can build better seawalls.

For estate planners, those seawalls are often practical: identify the client, define the engagement, understand the client’s objectives, communicate clearly, document important decisions, make sure the documents accomplish what they are supposed to accomplish, coordinate asset ownership, follow through after execution, and know when to bring in additional expertise.

And when a claim does arrive, a well-documented file can help the lawyer — and the lawyer’s professional liability insurer — identify what the client intended, what the lawyer did, and what the documents accomplished and determine whether the law recognizes a duty to the person bringing the claim. That kind of preparation can keep a rising tide from becoming a flood.

Endnotes

[1] Jonathan R. Ingrisano, Mark Ong Thomson & Xavier O. Jenkins, Storm Surge: The Swell of Probate and Trust Litigation in Wisconsin, 99 Wis. Law. 8 (July 2026). The article discusses the increasing volume of probate, trust, and fiduciary litigation and the professional risks facing estate planning attorneys. ^

[2] Auric v. Continental Cas. Co., 111 Wis. 2d 507, 331 N.W.2d 325 (1983). ^

[3] Id. at 509, 513–14. ^

[4] Beauchamp v. Kemmeter, 2001 WI App 5, ¶¶ 7–9, 240 Wis. 2d 733, 625 N.W.2d 297. ^

[5] Tensfeldt v. Haberman, 2009 WI 77, ¶ 72, 319 Wis. 2d 329, 768 N.W.2d 641. ^

[6] Wisconsin Acad. of Sciences, Arts & Letters v. First Wis. Nat’l Bank (In re Revocable Tr. of McCoy), 142 Wis. 2d 750, 419 N.W.2d 301 (Ct. App. 1987). The court of appeals concluded that the Auric holding applied to trusts, but the claim concerned alleged negligence by a trustee in performing fiduciary duties, not legal malpractice of an attorney. ^

[7] Berenz v. Behrendt, No. 2025CV001585 (Waukesha Cnty.). The circuit court dismissed the complaint for failure to state a claim. ^

[8] Comment 2 to SCR 20:1.1 Competence states the following: “A lawyer need not necessarily have special training or prior experience to handle legal problems of a type with which the lawyer is unfamiliar. A newly admitted lawyer can be as competent as a practitioner with long experience. Some important legal skills, such as the analysis of precedent, the evaluation of evidence, and legal drafting, are required in all legal problems. Perhaps the most fundamental legal skill consists of determining what kind of legal problems a situation may involve, a skill that necessarily transcends any particular specialized knowledge. A lawyer can provide adequate representation in a wholly novel field through necessary study. Competent representation can also be provided through the association of a lawyer of established competence in the field in question.” ^

[9] See SCR 20:1.4 Communication. ^

[10] MacLeish v. Boardman & Clark LLP, 2019 WI 31, ¶¶ 48–50, 386 Wis. 2d 50, 924 N.W.2d 799. ^

[11] Id. ¶¶ 39, 47–48, 63–65; see also Tensfeldt, 2009 WI 77, ¶¶ 72–74, 319 Wis. 2d 329. ^