JOURNAL NEWSWIRE ARTICLE
2003 The Daily Journal Corporation.
Not Liable for Decisions of Infirm Client-an attorney whose elderly client
changed his will, provoking the heirs to sue. A lawyer drafting a will has no duty to
beneficiaries to check
on the mental capacity of the client
NOT LIABLE FOR DECISIONS OF INFIRM CLIENT
DCA rules in favor of an
attorney whose elderly client
changed his will, provoking
the heirs to sue.
Journal Staff Writer
FRANCISCO - A lawyer drafting a will has no duty to beneficiaries to check on
the mental capacity of the client, a unanimous San Francisco appellate court has
ruled in a case of first impression.
opinion means disappointed heirs can’t sue for malpractice a lawyer who helps
a client change a will, even if the client’s testamentary capacity is
a lawyer’s duty of care beyond the client to the beneficiaries would place an
intolerable burden on attorneys, said Presiding Judge J.
Kline of the 1st District Court of Appeal.
in Kline’s opinion were Justices Paul R. Haerle and James R.
Moore v. Anderson Zeigler, 2003 DJDAR 6717.
only would the attorney be subject to potentially conflicting duties to the
client and to potential beneficiaries, but counsel also could be subject to
conflicting duties to different sets of beneficiaries,” Kline wrote.
case arose after a wealthy Sonoma businessman, Clyde P. Smith, the founder of
Argonaut Constructors in Santa Rosa, became terminally ill, was placed on
powerful medications and was hospitalized.
Rob Disharoon, of Santa Rosa’s Anderson Zeigler Disharoon Gallagher &
Gray, knew Smith was ill and weak. Even so, he drafted new documents
fundamentally changing the distribution of Smith’s estate among his nine adult
June 21, 2000, Smith signed the will. He died two days later.
probate litigation among the family members settled, four of the children sued
Anderson Zeigler for malpractice.
complaint alleged that “a competent attorney would have recognized that
litigation between the children was likely unless the attorney took reasonable
steps to investigate, confirm and document the client’s capacity, competence
and testamentary intent.”
noted that “no California case directly addresses the duty question in the
alleged incapacity context presented here.” The panel reached beyond
California, taking guidance from the Restatement Third of Law Governing Lawyers,
an influential treatise published by the American Law Institute. It wrote:
“Making lawyers liable to nonclients ...
tend to discourage lawyers from vigorous representation.” The Massachusetts
Supreme Court reached a similar conclusion in Logotheti v.
414 Mass. 308 (1993), the panel’s research showed.
may be that prudent counsel should refrain from drafting a will for a client the
attorney reasonably believes lacks testamentary capacity or should take steps to
preserve evidence regarding the client’s capacity in a borderline case,”
that is a far cry from imposing malpractice liability to nonclient potential
beneficiaries for the attorney’s alleged inadequate investigation or
evaluation of capacity or the failure to sufficiently document that
lawyer Michael D. Senneff pointed out that the plaintiffs had a remedy in
probate court, where issues of competence are frequently tried.
the estate lawyer would have been a witness, not a party.
But the plaintiffs chose to settle that litigation and sued the lawyer
instead,” said Senneff, of Santa Rosa’s Senneff Freeman & Bluestone.
L. Boli of Alameda, who represented the plaintiffs, said that after 20 years of
legal malpractice work, “I felt it was time to try to push the boundaries of
the lawyer’s duty. But I didn’t succeed.”