Reilly v. Pansing Hogan Ernst & Bachman, 34 Neb. App. 285

Background

Christine Reilly sued Thomas Pansing and his firm for malpractice after estate-planning changes benefitting George Kubat's spouse were made shortly before Kubat's death. 1
Pansing had drafted Kubat's trust, later amendments, and the April 12, 2021 will that increased the gift to Walsh to $6 million before Kubat married Walsh and died that day. 2
After Kubat died, family litigation invalidated the April 12 trust amendment and will based on undue influence. 3
Reilly demanded that the special administrator/trustee sue Pansing, but Security National declined to join the proposed malpractice action. 4
Reilly then filed this action individually and derivatively on behalf of the trust and estate, seeking her litigation fees and costs. 5
The district court granted summary judgment for Pansing, finding Reilly lacked derivative standing and, alternatively, that no duty was owed to her individually. 6

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Did Reilly have standing individually? 7	Reilly incurred her own fees in the underlying litigation.	Pansing said she lacked a recoverable individual injury.	Yes; she had individual standing. 8
Did Reilly have standing to sue for the Estate? 9	Security National refused to sue, so Reilly could proceed derivatively.	Only the personal representative or special administrator may sue for the Estate.	No; Reilly lacked estate standing. 10
Did Reilly have standing to sue for the Trust? 11	The trustee refused to act, so she could bring a derivative trust action.	Only the trustee may sue unless refusal is improper, which Reilly did not show.	No; she lacked trust standing. 12
Was exhibit 22 wrongly admitted? 13	Pansing's affidavit contained contradictory, unfounded, and hearsay statements.	Her objections were undeveloped or different from those made below.	No reversible evidentiary error. 14
Did Pansing owe Reilly a duty and was summary judgment proper? 15	She was an intended beneficiary and attorney-client relationship existed.	He represented George only; no duty to Reilly and no material fact dispute.	No duty and summary judgment affirmed. 16

Key Cases Cited

In re Estate of Schurman, 967 N.W.2d 734 (Neb. App. 2021) (standing is a jurisdictional issue reviewed as a question of law 17)
Elbert v. Young, 977 N.W.2d 892 (Neb. 2022) (evidentiary rulings are reviewed for abuse of discretion 18)
Perez v. Stern, 777 N.W.2d 545 (Neb. 2010) (sets factors for attorney duty to nonclients 19)
Czech v. Allen, 21 N.W.3d 1 (Neb. 2025) (summary judgment is reviewed de novo 20)
Kellogg v. Mathiesen, 26 N.W.3d 651 (Neb. 2025) (standing requires a personal stake at commencement of suit 21)
Kimball v. Rosedale Ranch, 24 N.W.3d 841 (Neb. 2025) (only a personal representative or special administrator may sue for estate assets 22)
In re Estate of Hedke, 775 N.W.2d 13 (Neb. 2009) (discusses the pre-UPC heir exception when a representative refuses to act 23)
Back Acres Pure Trust v. Fahnlander, 443 N.W.2d 604 (Neb. 1989) (trustee is the proper party to sue on behalf of a trust 24)
In re William R. Zutavern Revocable Trust, 961 N.W.2d 807 (Neb. 2021) (Nebraska trust statutes derive from the Restatement (Third) of Trusts 25)
Ford v. Estate of Clinton, 656 N.W.2d 606 (Neb. 2003) (a party may not change evidentiary objections on appeal 26)
Richardson v. Griffiths, 560 N.W.2d 430 (Neb. 1997) (elements of attorney-client relationship 27)
McVaney v. Baird, Holm, McEachen, 466 N.W.2d 499 (Neb. 1991) (detrimental reliance may help prove an attorney-client relationship 28)
Swanson v. Ptak, 682 N.W.2d 225 (Neb. 2004) (erroneous belief does not create an attorney-client relationship 29)
Lilyhorn v. Dier, 335 N.W.2d 554 (Neb. 1983) (lawyer duty generally does not extend to third parties in estate planning 30)
St. Mary's Church v. Tomek, 325 N.W.2d 164 (Neb. 1982) (lawyer duty generally does not extend to third parties in estate planning 31)
Momsen v. Nebraska Methodist Hospital, 313 N.W.2d 208 (Neb. 1981) (litigation-driven contradictory testimony may be disregarded as a matter of law 32)