Simon v. Wilson

                                               SIXTH DIVISION
                                               June 27, 1997  













No. 1-96-2529
HELEN SIMON, MARK SIMON and                 )  Appeal from the
RITA SIMON,                                 )  Circuit Court of
                                            )  Cook County.
     Plaintiffs-Appellants,                 )
                                            )
          v.                                )
                                            )
SAMUEL WILSON, Individually and as Trustee  )
under the Samuel Wilson Trust established   )
pursuant to agreement dated March 19, 1992; )
DAVID SIMON; LAWRENCE WILSON; STEVEN WILSON;)
SCHUYLER, ROCHE & ZWIRNER, a Professional   )
Corporation; RICHARD B. WEINBERG; and       )
DAVID A. NOYES & COMPANY,                   )  Honorable 
                                            )  Albert Green,
     Defendants-Appellees.                  )  Judge Presiding.

     PRESIDING JUSTICE GREIMAN delivered the opinion of the
court:
     Plaintiffs, who are the daughter and grandchildren of the
late Ruth Wilson (Ruth) and legatees under Ruth's will, alleged
in their pleadings that Ruth's husband, Samuel Wilson (Sam),
misappropriated Ruth's interest in joint tenancy property during
her lifetime and misled her regarding the effect of her will. In
so doing, plaintiffs allege that Sam violated his fiduciary,
statutory and common law duties vis a vis Ruth. Plaintiffs
further allege that attorney Richard Weinberg (Weinberg) and his
firm, Schuyler, Roche & Zwirner (the firm), committed malpractice
in failing to ascertain and protect Ruth's interests, resulting  
in the frustration of Ruth's testamentary intentions. Lastly,
plaintiffs' complaint joined the brokerage firm of David A. Noyes
& Company (Noyes) as a defendant, alleging Noyes has custody of
property that is the subject of this suit.
     On March 7, 1996, the trial court granted motions to dismiss
brought by Sam, individually and as trustee of his revocable
trust, and Noyes, pursuant to section 2-615 of the Code of Civil
Procedure. 735 ILCS 5/2-615 (West 1994). On July 17, 1996, the
trial court dismissed Weinberg and the firm on summary judgment
pursuant to section 2-1005 of the Code of Civil Procedure. 735
ILCS 5/2-1005 (West 1994). The trial court also quashed
plaintiffs' notice to take Sam's deposition, denied plaintiffs
leave to amend their complaint and denied plaintiffs' motion to
reconsider. 
     On appeal, plaintiffs argue that (1) the trial court's
decision to dismiss Sam was erroneous and contrary to the
provisions of the Joint Tenancy Act (765 ILCS 1005/4 (West 1994))
and Sam's fiduciary obligations; (2) the trial court erred in
granting summary judgment in favor of Weinberg and the firm based
on its finding that they owed no duty to Ruth; (3) the trial
court erred in dismissing Noyes as an unnecessary party; and (4)
the trial court erred in denying plaintiffs leave to amend their
complaint. 
     For the reasons that follow, we affirm the trial court's
dismissal of Noyes, reverse the dismissal of Sam and reverse
summary judgment in favor of Weinberg and the firm. Additionally,
we affirm the trial court's decision regarding plaintiffs'
proposed amendment and Sam's evidence deposition.
     Ruth and Sam were married for 40 years, until Ruth's death
on August 4, 1993. In October 1991, Sam engaged Weinberg and the
firm to assist in the planning of his and Ruth's estate. In their
initial conversations, Sam informed Weinberg that Ruth was ill
and could not, therefore, join their meetings.
     In fact, from 1988 until the time of her death, Ruth had
diminished physical and mental abilities and was dependent on Sam
for attention to her personal and financial needs. Because of her
illnesses, including peripheral vascular disease affecting Ruth's
feet and legs, she could not leave her home unassisted. Ruth's
ability to read was also compromised by poor eyesight such that
she could not read the newspaper or other printed materials. Ruth
relied on others to read such materials to her.
     Ruth was hospitalized in November 1991. During her
hospitalization, Sam asked Ruth to execute a power of attorney
covering all property in which Ruth had an interest. Sam informed
Ruth that the power of attorney was necessary to enable him to
accomplish their estate planning, to manage their property and to
negotiate the Medicare and insurance checks made payable to Ruth.
     Ruth agreed and, on November 6, 1991, she executed a
statutory power of attorney for property designating Sam as her
agent. Ruth's children were present in the hospital when the
document was executed and delivered to Sam. Plaintiffs' complaint
alleges that Sam "encouraged" Ruth to repose her trust in him and
became, therefore, responsible as a fiduciary to Ruth.
     At the time Ruth executed the power of attorney, she owned
real and personal property jointly with Sam valued in excess of
$2 million, the majority being investment securities and the
marital residence located in Lincolnwood, Illinois.
     Contemporaneous with Ruth's execution of the power of
attorney, Sam formally engaged Weinberg and the firm to assist in
preparation and execution of an estate plan for Ruth and Sam.
Plaintiffs' complaint alleges that "Sam encouraged Ruth to repose
her trust and confidence in him and to rely on him in choosing
[Weinberg] and [the firm]." Sam informed Weinberg of Ruth's
desire to have her daughter and grandchildren (plaintiffs)
benefit from her estate. With this knowledge and upon Sam's
request, Weinberg prepared a draft will for Ruth. Weinberg never
met or spoke with Ruth.
     Sam asked Weinberg to make changes in the draft will, and
Weinberg sent the revised or second will to Sam. Weinberg
maintains that this second will was also a draft and not meant to
be executed. However, on January 6, 1992, in the presence of Sam
and two witnesses, Ruth executed the will. In its operative part,
the will provides:
                          "ARTICLE II
                       Personal Property
          I give all of my personal and household effects,
     automobiles and all of my other tangible personal property,
     other than jewelry, held for purposes of personal use and
     enjoyment, as distinguished from business or investment
     purposes, with any insurance policies thereon, to my
     husband, SAMUEL WILSON (hereinafter referred to as 'Sam'),
     if he survives me. I give all of my jewelry and, if Sam does
     not survive me, all the rest of my personal and household   
     effects, automobiles and other tangible personal property,  
     to my daughter, HELEN SIMON, and her children, MARK SIMON,  
     DAVID SIMON, and RITA SIMON (hereinafter referred to by
     their respective first names), to be divided among them as
     they agree ***.
                           ARTICLE III
                         Use of Our Home
          If Sam survives me and so desires, he may live in, use
     or occupy any home which I own at my death during his
     lifetime for so long as he may desire to do so, provided Sam
     maintains the home, pays all real estate taxes, insurance
     premiums and interest (but not principal) on any mortgage
     thereon. If at any time said home is sold with Sam's consent
     during Sam's lifetime, or because Sam has become disabled to
     such an extent that it is reasonable to conclude he will not
     be able to live in said home in the future, the proceeds of
     such sale shall be distributed to those of Helen, Mark,
     David and Rita who are living at the time of said sale, in
     equal shares. Upon Sam's death, if the home has not been
     sold previously, I hereby give and devise said home to those
     of Helen, Mark, David and Rita who are living at Sam's
     death.
                          ARTICLE IV
                     Balance of My Estate
          I hereby give, devise and bequeath all of the rest,
     residue and remainder of my estate (which may include our
     home if Sam does not survive me) to those of Helen, Mark,
     David and Rita who survive me, in equal shares."
     While Ruth was still living, Sam created, with the help of
Weinberg, his own will and revocable "grantor" trust, of which he
was trustee. Sam's will and trust provide, "I do not provide in
this instrument [will and trust] for my wife's daughter, Helen
Simon, and her children because my wife will be providing for
them in her Will."
     Ruth's will was never revoked or modified from the time of
its execution to the time of her death, and Sam retained
possession of Ruth's will at all times. After Ruth's death, Sam
delivered Ruth's will to Weinberg, who filed it with the clerk of
the circuit court of Cook County. Sam has administered Ruth's
estate without probating Ruth's will or initiating any court
proceedings under the Probate Act of 1975 (755 ILCS 5/1-1 et seq.
(West 1994)). Pursuant to Ruth's will, her daughter and
grandchildren received Ruth's jewelry having an aggregate value
of approximately $1,700.
     During their 40-year marriage, all of the stocks, bonds and
other savings and investments Sam and Ruth acquired were held in
joint tenancy. In March 1992, Sam executed his inter vivos trust.
At the same time, Sam received from Weinberg the following
written instruction relating to registration of Sam's assets in
the trust:
          "Transfer all of your assets (not Ruth's) as follows:
          'Samuel Wilson, as Trustee of the Samuel Wilson Trust
          established pursuant to agreement dated March 19,
          1992.'"
     In apparent disregard of Weinberg's advice, Sam delivered
all of the securities jointly owned by him and Ruth to Noyes,
which registered the securities, valued at approximately $1.34
million, in an account under the name of the Samuel Wilson Trust.
The power of attorney was delivered with the securities and
appears to be the authority by which the securities were
registered. The securities remain in Sam's account with Noyes.
     Plaintiffs allege that Sam benefitted from the transfer of
the securities into his trust in that he gained the right to
assume and exercise exclusive ownership over the securities, 
destroyed Ruth's survivorship rights to the securities,
frustrated Ruth's desire that her property pass to her daughter
and grandchildren, and lessened Ruth's interests in the
securities. Plaintiffs, as beneficiaries under Ruth's will, seek
to establish Ruth's interests in the property held in trust with
Noyes.
     In addition to their complaint, plaintiffs submitted the
affidavit of attorney Michael Susman (Susman), who offered the
expert opinion that Ruth may be deemed a client of Weinberg and
the firm, thereby creating a duty that Weinberg and the firm
subsequently breached. Susman's opinion was not rebutted below.
     Plaintiffs initially argue that the trial court erred in
granting Sam's motion to dismiss. The question posed by a section
2-615 motion is whether sufficient facts are stated in the
complaint which, if established, could entitle the plaintiff to
relief. Illinois Graphics Co. v. Nickum, 159 Ill. 2d 469 (1994).
In considering such a motion, the court must take all well-
pleaded facts in the complaint as true and draw reasonable
inferences from those facts that are favorable to the pleader.
Ziemba v. Mierzwa, 142 Ill. 2d 42 (1991). However, conclusions of
law or fact contained within the challenged pleading will not be
taken as true unless supported by specific factual allegations.
Ziemba, 142 Ill. 2d  at 47. A cause of action should not be
dismissed on the pleadings unless it is apparent that no set of
facts can be proven that would entitle the plaintiff to recover.
Illinois Graphics, 159 Ill. 2d  at 488. Since the question of
whether a complaint states a cause of action is one of law, our
review of a trial court's dismissal of a complaint pursuant to
section 2-615 is de novo. Beck v. Budget Rent-A-Car, 283 Ill.
App. 3d 541 (1996). 
     The trial court's dismissal of Sam was based on its
perception that, because Sam would have succeeded to Ruth's
interest in the joint tenancy property upon her death, the fact
that Sam severed the joint tenancy by transferring the subject
property into his trust has no effect and can be excused. We
disagree, finding this "no harm, no foul" determination contrary
to the rules governing joint tenancy property.
     Plaintiffs' complaint alleges that Sam was a fiduciary to
Ruth. This is undeniable, as Sam achieved this status as a matter
of law upon execution of Ruth's power of attorney. See In re
Estate of Rybolt, 258 Ill. App. 3d 886 (1994) (a power of
attorney gives rise to a general fiduciary relationship between
the grantor of the power and the grantee as a matter of law). In
addition, a fiduciary relationship may arise from a relationship
that is moral, social, domestic or personal in its origin.
Wiszowaty v. Baumgard, 257 Ill. App. 3d 812 (1994). When no
fiduciary relationship exists as a matter of law, the plaintiff
must plead facts showing that one party placed trust and
confidence in the other so that the latter gained influence and
superiority over the former. Farmer City State Bank v. Guingrich,
139 Ill. App. 3d 416 (1985). Factors to be considered in
determining whether a fiduciary relationship exists include the
degree of kinship, disparity of age, health, mental condition,
education and business experience between the parties, and the
extent to which the allegedly servient party entrusted the
handling of his business and financial affairs to the other and
reposed faith and confidence in him. Farmer City State Bank, 139
Ill. App. 3d at 424.
     In the present case, plaintiffs pled sufficient, if not
overwhelming, facts to support their allegation that Sam was
Ruth's fiduciary, including, and in addition to the executed
power of attorney, Ruth's near total dependence on Sam, the
duration of their marriage, Ruth's diminished physical and mental
capabilities, and the considerable trust Ruth placed with Sam. As
Ruth's fiduciary, Sam owed her a duty of loyalty that plaintiffs
allege was breached upon Sam's transfer of the joint tenancy
securities into his living trust. 
     A joint tenancy will be severed when one or more of the four
unities of time, title, interest or possession is destroyed. In
re Estate of Zoglauer, 229 Ill. App. 3d 394, 398 (1992). A joint
tenant can sever a joint tenancy by conveying his interest
without the consent or permission of the other. Zoglauer, 229
Ill. App. 3d at 398; Minonk State Bank v. Grassman, 95 Ill. 2d 392, 395-96 (1983).      
     Sam's allegedly unilateral transfer of the joint tenancy
property into his trust effectively severed the joint tenancy and
resulted in a benefit to Sam and detriment to Ruth. Because Sam
was a fiduciary to Ruth, the transfer is presumptively
fraudulent. See Rybolt, 258 Ill. App. 3d at 889 (a presumption of
fraud attaches to a transfer by a fiduciary for his own use, and
this presumption is only overcome by clear and convincing
evidence); Glass v. Burkett, 64 Ill. App. 3d 676, 681 (1978)
(where a fiduciary relationship exists at the time of a
transaction whereby the dominant party appears to gain, the
transaction is deemed presumptively fraudulent but such
presumption is not conclusive and may be rebutted by clear and
convincing proof that the dominant party has exercised good
faith). That Sam benefitted from the transfer is clear. As
plaintiffs' complaint observes, Sam gained the right to exercise
exclusive ownership over Ruth's interest in the property,
destroyed Ruth's survivorship rights in the property, frustrated
Ruth's desire that her property pass to her daughter and
grandchildren and otherwise lessened Ruth's interest in the
property. Therefore, the transfer, by virtue of Sam's status as a
fiduciary, is presumptively fraudulent. Moreover, the transfer of
property may be set aside because of Sam's breach of his
fiduciary duties. In re Estate of Kaminski, 200 Ill. App. 3d 309
(1990). The trial court's order of dismissal is therefore
reversed. On remand, Sam will be provided the opportunity of
coming forward with clear and convincing evidence that his act of
transfer was made in good faith and with the disclosure of all
relevant information to Ruth. See Glass, 64 Ill. App. 3d at 681.
     If Sam is incapable of rebutting the presumption of fraud
attached to his transfer, the trial court must then determine the
present status of the property held in Sam's trust and fashion an
appropriate remedy. Following the severance of a joint tenancy,
by agreement or conduct of the parties inconsistent with holding
in joint tenancy, the former joint tenants hold the property as
tenants in common, each with an undivided one-half interest. See
Minonk, 95 Ill. 2d  at 394; Zoglauer, 229 Ill. App. 3d at 398; In
re Estate of Brach, 76 Ill. App. 3d 1050, 1053 (1979).
     Plaintiffs' complaint further alleges that Sam fraudulently
prevented Ruth from giving effect to her testamentary disposition
of the marital residence. The trial court found that plaintiffs'
complaint failed to allege sufficient facts in support of their
fraud claim. The elements of common law fraud are:
     "'(1) a false statement of material fact (2) known or
     believed to be false by the party making it; (3) intent to
     induce the other party to act; (4) action by the other party
     in [justifiable] reliance on the truth of the statement; and
     (5) damage to the other party resulting from such
     reliance.'" Adler v. William Blair & Co., 271 Ill. App. 3d
     117, 125 (1995), quoting Gerill Corp. v. Jack L. Hargrove
     Builders, Inc., 128 Ill. 2d 179, 193 (1989). 
     A party pleading fraud must allege facts sufficient to
establish that its reliance on the alleged misrepresentations was
justified, that is, that it had a right to rely upon the
statement. Adler, 271 Ill. App. 3d at 125; Charles Hester
Enterprises, Inc. v. Illinois Founders Insurance Co., 114 Ill. 2d 278, 288 (1986). In determining whether reliance was justified,
all of the facts that the plaintiff knew, as well as those facts
the plaintiff could have learned through the exercise of ordinary
prudence, are taken into account. Adler, 271 Ill. App. 3d at 125.
A complaint alleging fraud must set out the facts with
specificity, particularity and certainty under Illinois
procedural law governing pleadings. Boatwright v. Delott, 267
Ill. App. 3d 916, 919 (1994). A complaint must clearly and
explicitly allege sufficient facts to support a conclusion of
fraud, which will not be presumed. Merely characterizing acts as
having been done fraudulently is insufficient. Boatwright, 267
Ill. App. 3d at 919.
     Plaintiffs maintain that Sam's failure to break the joint
tenancy of the home prior to Ruth's death was fraudulent and
designed to invalidate her expressed intentions. Sam argues that
Ruth's will imposed no duty on him to convey his interest in the
residence to Ruth and, short of such an affirmative duty, his
inaction cannot be deemed fraudulent nor support the remedy of
constructive trust sought by plaintiffs. We agree with Sam that
the testamentary disposition by Ruth imposes no duty upon him;
however, we disagree that there are not sufficient allegations
setting out Sam's status as a fiduciary, and the breach of his
duties as such, that would properly plead a cause of action in
fraud.
     In the present case, the marital residence was owned by Ruth
and Sam in joint tenancy. After Ruth's death, Sam took the
property as the surviving joint tenant. Ruth's will provided that
the property, or the proceeds from its sale, would pass to
plaintiffs either upon Sam's sale of the property during his
lifetime or upon his death. However, because the property
remained in joint tenancy at the time of Ruth's death, Ruth's
testamentary disposition of the home was ineffective. 
     Sam argues on appeal that Ruth "did not say or do anything
to demonstrate that she wanted or intended the residence to pass
to her daughter and grandchildren upon her death." Simply put, we
find this contention incredible. Sam was a fiduciary to Ruth. In
this capacity, he caused Weinberg to draft Ruth's will, which
provided: 
          "If at any time [the marital residence] is sold with
          Sam's consent during Sam's lifetime *** the proceeds of
          such sale shall be distributed to [plaintiffs] in equal
          shares. Upon Sam's death, if the home has not been sold
          previously, I hereby give and devise said home to those
          [plaintiffs] who are living at Sam's death."
     The complaint alleges that Ruth signed the will, indicating 
her intention that her interest in the residence pass to
plaintiffs. There is hardly a more suitable means of evincing
one's testamentary intentions. To be sure, no rights are
generally conferred upon the putative beneficiary where a bequest
or devise is set out in a will and the specific property is not
possessed by the decedent at death. 
     Sam's will and trust provides: "I do not provide in this
[instrument] for [plaintiffs] because my wife will be providing
for them in her Will." Therefore, Sam was undeniably aware of
Ruth's intent to leave her interest in the residence to
plaintiffs. Moreover, as Sam concedes in his appellate brief and
as alleged in plaintiffs' complaint, his "motivating goal from
the inception of his relationship with Weinberg was to save
estate taxes." Sam informed Ruth that it was necessary for her to
sign her will in order to save on estate taxes. However, as Sam
was also aware, in order to save estate taxes it was necessary
that the property held jointly, including the residence, be
divided between Ruth and Sam individually. Weinberg advised Sam
of the need and manner in which to effectuate such transfer. 
However, with knowledge that such a transfer was necessary, Sam
did nothing for over a year until creating his trust and
eventually selling the marital residence in 1995.  
     These are not the acts of a fiduciary, particularly where
Ruth granted Sam power of attorney and depended on Sam to read
and explain the contents of her will. In short, the complaint
sets out facts indicating that Sam acted contrary to Ruth's
interests, breached his fiduciary duty and his conduct may
therefore be deemed fraudulent. See Vermeil v. Jefferson Trust &
Savings, 176 Ill. App. 3d 556, 563 (1988) (where there is a
breach of a legal or equitable duty arising out of a fiduciary
relationship, a presumption of fraud arises). Accordingly, the
trial court erred in dismissing plaintiffs' complaint as to the
marital residence.
     Plaintiffs further challenge the trial court's finding that
count II of their complaint failed to state a cause of action for
tortious interference with an expectancy under a will. To plead a
cause of action for tortious interference with an expectancy of
receiving property pursuant to a will, plaintiffs must allege (1)
the existence of an expectancy; (2) defendant's intentional
interference with that expectancy; (3) the interference involves
tortious conduct such as fraud, duress, or undue influence; (4) a
reasonable certainty that the devise would have been received but
for defendant's interference; and (5) damages. Prosen v.
Chowaniec, 271 Ill. App. 3d 65, 67 (1995). In the present case,
we agree with the trial court that plaintiffs have not
sufficiently pled a cause of action for tortious interference
with an expectancy under a will and affirm the trial court's
dismissal of that count.
     The relevant inquiry is whether the allegations in
plaintiffs' complaint, if true, lead to the conclusion that there
is a reasonable certainty that plaintiffs would have received
that which they expected under Ruth's will but for Sam's actions.
In Nemeth v. Banhalmi, 99 Ill. App. 3d 493, 498 (1981), the court
established a high standard for what "reasonable certainty" means
in this context:
          "A bare possibility may not be [protectible]. But where
          an intending donor, or testator *** has actually taken
          steps toward perfecting the *** devise, *** so that if
          let alone the right of the *** devisee *** will cease
          to be inchoate and become perfect, we are of the
          opinion that there is such a status than an action will
          lie, if it is maliciously and fraudulently destroyed,
          and the benefit diverted to the person so acting,
          thus occasioning loss to the person who would have
          received it." 
     In the instant case, plaintiffs have not established their
expectancy with "reasonable certainty." In order for plaintiffs
to have benefitted under Ruth's will, the property held jointly
between Ruth and Sam would have had to have been transferred to
Ruth individually. Although Sam, as Ruth's fiduciary, was charged
with making the requisite transfer, his failure to do so is not
actionable by plaintiffs. Absent the property transfer,
plaintiffs stood to gain nothing under Ruth's will, as the
property passed to Sam as Ruth's surviving joint tenant. Thus,
since plaintiffs' expectancy was dependent on Sam's actions, it
would not have, "if let alone," become perfect. Therefore,
plaintiffs are unable to set out their expectancy with the
requisite degree of certitude recognized in Nemeth.
     Although, as we have previously recognized, Sam's failure to
transfer the property may have constituted a breach of his
fiduciary duty owed to Ruth, Sam owed no similar duty to
plaintiffs and plaintiffs are unable to allege any acts of
interference directed at them or their interests. Accordingly, we
affirm the trial court's dismissal of count II of plaintiffs'
complaint.
     Plaintiffs next argue that the trial court erred in denying
them leave to amend their complaint. When plaintiffs brought
their motion to reconsider, they also moved to add a fourth count
to their amended complaint alleging Sam's violation of then
section 8-315 of the Uniform Commercial Code. 810 ILCS 5/8-315
(West 1992). The trial court denied their motion, and we affirm.
     Amendments to pleadings should be liberally allowed to
permit parties to fully present their causes of action. Jeffrey
M. Goldberg & Associates v. Collins Tuttle & Co., 264 Ill. App.
3d 878, 885 (1994). Four factors are to be considered in
determining whether the trial court abused its discretion in
refusing an amendment: (1) whether the proposed amendment would
cure the defective pleading; (2) whether other parties would
sustain prejudice or surprise by virtue of the proposed
amendment; (3) whether the proposed amendment is timely; and (4)
whether previous opportunities to amend the pleading could be
identified. Goldberg, 264 Ill. App. 3d at 885; Loyola Academy v.
S&S Roof Maintenance, Inc., 146 Ill. 2d 263, 273 (1992).
     Plaintiffs' motion, brought in conjunction with their motion
to reconsider, was not timely, nor did plaintiffs avail
themselves of earlier opportunities to add this count to their
complaint. Additionally, the proposed amendment had a potentially
prejudicial effect on Sam in that it asserted statutory
liability. For these reasons, the trial court's refusal was
proper.
     We now review the trial court's decision granting summary
judgment in favor of Weinberg and the firm. Summary judgment is
proper when the pleadings, depositions, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party
is entitled to judgment as a matter of law. 735 ILCS 5/2-1005
(West 1994); Addison v. Whittenberg, 124 Ill. 2d 287, 294 (1988).
An order allowing summary judgment will be reversed on appeal if
the reviewing court determines that a genuine issue of material
fact exists. Addison, 124 Ill. 2d  at 294. Our review of a grant
of summary judgment is de novo. Outboard Marine Corp. v. Liberty
Mutual Insurance Co., 154 Ill. 2d 90, 102 (1992).
     The trial court entered judgment for the lawyers based on
its finding that Ruth was not Weinberg's client and therefore no
duty was owed her. In an action for legal malpractice, a
plaintiff must prove that the defendant attorney owed plaintiff a
duty of care arising from the attorney-client relationship, that
the defendant breached that duty, and that, as a proximate
result, the plaintiff suffered injury. Sexton v. Smith, 112 Ill. 2d 187 (1986). The existence of a duty presents a question of law
to be determined by the trial court. Barnes v. Washington, 56 Ill. 2d 22 (1973). Weinberg and the firm argue that plaintiffs
have failed to raise a genuine issue of material fact as to each
of these essential elements of plaintiffs' claim. 
     The attorney-client relationship is consensual and arises
only when both the attorney and the client have consented to its
formation. Torres v. Divis, 144 Ill. App. 3d 958 (1986). The
client must manifest her authorization that the attorney act on
her behalf, and the attorney must indicate his acceptance of the
power to act on the client's behalf. Torres, 144 Ill. App. 3d at
962. An attorney's duty to a client is measured by the
representation sought by the client and the scope of the
authority conferred. York v. Stiefel, 109 Ill. App. 3d 342
(1982). Although, as a general rule, an attorney owes a duty only
to one who is a client (Geaslen v. Berkson, Gorov & Levin, Ltd.,
220 Ill. App. 3d 600 (1991)), an exception has been recognized
when an attorney is hired by a client specifically for the
purpose of benefitting a third party. Schwartz v. Cortelloni, No.
80614 (June 19, 1997).
     In this case, Ruth's delivery of a power of attorney to Sam,
for the specific purpose of estate planning, was explicit
authorization that Weinberg act on her behalf. Weinberg accepted
the power to act by preparing Ruth's will in consideration of her
testamentary wishes. The will prepared by Weinberg and executed
by Ruth gives effect to Ruth's desire to benefit plaintiffs. As
Sam made clear, he had no such intentions. Weinberg was,
therefore, representing Ruth in this capacity, as opposed to Sam,
because, as Weinberg himself observed, "it was clear from day one
that Sam's estate was going in one direction and Ruth's in
another." By this observation, Weinberg recognizes that his
representation not only encompassed both Ruth and Sam, but
foreshadows his subsequent attempts to reconcile the divergent
paths of their estates. We find, therefore, that plaintiffs have
established an attorney-client relationship between Ruth and
Weinberg. In light of this relationship, Weinberg owed Ruth a
duty of care as a matter of law. McLane v. Russell, 131 Ill. 2d 509, 515 (1989). 
     Plaintiffs allege he breached this duty in failing to advise
Ruth of ways to benefit plaintiffs through inter vivos
conveyances, failing to exercise due care in ascertaining Ruth's
property interests and assisting in the development and execution
of Ruth's estate plan and failing to maintain a "normal" client-
lawyer relationship notwithstanding Ruth's health. While we
express no opinion as to whether Weinberg committed a breach, we
do find that plaintiffs' complaint and the record raise an issue
of material fact on the question of whether there was a breach of
Weinberg's duty. In this regard, it is interesting to note the
conflicting deposition testimony of Sam and Weinberg on such key
issues as whether Weinberg asked to speak to Ruth and whether
Weinberg advised Sam that it was necessary to sever the joint
tenancy. Because questions of fact exist on the issue of
Weinberg's performance, summary judgment was inappropriate.
     We further find that Ruth sufficiently alleged injuries as a
result of any breach. As recognized by both Weinberg and Sam, a
primary purpose behind Weinberg's representation was to save
estate taxes. This was not accomplished. Moreover, Weinberg
drafted a will that reflected Ruth's intentions to benefit
plaintiffs, but these intentions were not realized. A question of
fact exists as to whether these shortcomings were a result of
Weinberg's breach or Sam's, independent, breach of his fiduciary
obligations.
     Additionally, plaintiffs' complaint sufficiently alleges a
third-party-beneficiary action against Weinberg. Generally, an
attorney owes a professional obligation only to his client, not
to nonclient third parties. Jewish Hospital v. Boatmen's National
Bank, 261 Ill. App. 3d 750, 759 (1994); McLane, 131 Ill. 2d  at
515. However, the supreme court has established that, under
limited circumstances, a nonclient may maintain a negligence
action against an attorney. Jewish Hospital, 261 Ill. App. 3d at
759; Ogle v. Fuiten, 102 Ill. 2d 356 (1984); Pelham v.
Griesheimer, 92 Ill. 2d 13 (1982). Regardless of which theory of
recovery is pled, nonclient plaintiffs seeking to recover for
malpractice must demonstrate that they are in the nature of
third-party intended beneficiaries of the relationship between
the attorney and client. Jewish Hospital, 261 Ill. App. 3d at
759. For a nonclient to succeed, he must prove that the primary
purpose and intent of the attorney-client relationship itself was
to benefit or influence the third party. Jewish Hospital, 261
Ill. App. 3d at 759; Pelham, 92 Ill. 2d  at 21. Our supreme court
has strongly embraced the concept that third-party-beneficiary
status should be easier to establish when the scope of the
attorney's representation involves matters that are
nonadversarial, such as in the drafting of a will. Jewish
Hospital, 261 Ill. App. 3d at 761; Ogle, 102 Ill. 2d  at 363;
Pelham, 92 Ill. 2d  at 22.
     Plaintiffs' complaint alleges that they "are beneficiaries
under Ruth's will and were intended third-party beneficiaries of
the duties owed to Ruth by Weinberg and [the firm]." The supreme
court has applied third-party-beneficiary status to contingent
beneficiaries under a will (Ogle, 102 Ill. 2d 356) and to
beneficiaries under a will where the devise failed. McLane, 131 Ill. 2d 509. Plaintiffs meet these criteria. See Jewish Hospital,
261 Ill. App. 3d at 760 (distinguishing York v. Stiefel, 99 Ill. 2d 312 (1983)). 
     We next consider the trial court's dismissal of Noyes.
Plaintiffs argue that Noyes is a necessary party pursuant to
section 17-103 of the Code of Civil Procedure (735 ILCS 5/17-103
(West 1992)), section 8-112 of the Uniform Commercial Code (810
ILCS 5/8-112(c) (West 1992)) and section 2-405 of the Code of
Civil Procedure (735 ILCS 5/2-405(a) (West 1992)). The basis for
joinder under all three sections is that the party to be named
has an interest in the controversy. We agree with the trial court
that Noyes has no such interest and therefore affirm its
dismissal. Moreover, as plaintiffs concede, the trial court's
personal jurisdiction over Sam is sufficient to allow the trial
court to fully adjudicate Sam's interest in the personal property
at issue.
     In summary then, we affirm the trial court's dismissal of
Noyes and reverse and remand the trial court's dismissal of Sam
and entry of summary judgment for Weinberg and the firm.
     Affirmed in part; reversed in part; and remanded.  
     THEIS, J., and QUINN, J., concur.