New California case – estate planning attorney potential duty to nonclient (i.e., to a potential or possible beneficiary)

The California Court of Appeal recently discussed estate planning attorney potential duty to a nonclient potential beneficiary. See Gordon v. Ervin Cohen & Jessup LLP, February 23, 2023, California Court of Appeal, Second District, B313903 (2023 WL 2178790). In Gordon the Court discussed the topic in a summary fashion, discussing that the estate planning attorney’s potential duty is limited, if it exists at all, but that any potential duty also depends on the facts of the case.

As I am writing this post for estate planning attorney informational purposes, instead of writing comments from my perspective, for this post I have decided to primarily copy and paste from part of the Court’s decision in Gordon so that estate planning attorneys can read and evaluate the Court’s decision and reasoning for themselves. It is common that I will copy and paste from an original source as then readers can read and evaluate for themselves instead of from the poster’s view, it is very uncommon that I would copy and paste to the extent that I am doing so in this post – just to be sure, this is not a format or approach to which I am switching.

Perhaps more interesting, as Gordon cites other cases that are relevant on the issue, below I have also extensively copied and pasted from part of the decision in one of those other cases:Moore v. Anderson Zeigler Disharoon Gallagher & Gray (2003) 109 Cal. App. 4th 1287. In Moore v. Anderson the Court’s decision contains more of a factual discussion (in part including a discussion about client mental capacity) which I believe that estate planning attorneys will find relevant. And, of course both Gordon and Moore also cite additional cases for review and consideration – on all of these subjects you need to obtain a complete understanding of all of the relevant law and then apply that understanding to the facts in your situation or case.

The remainder of this post contains wording from the decisions in Gordon and Moore (note: the quoted case citations in blue are not active links to those cases).

Gordon v. Ervin Cohen & Jessup LLP

First and most obviously, a lawyer owes no duty to a nonclient plaintiff to effectuate the client’s directive to “Do X” when the nonclient’s claim raises a question about what “X” is—that is, where there is a question about whether the client intended to benefit the plaintiff or how the client intended to do so. (Chang, supra, 172 Cal.App.4th at p. 82, 90 Cal.Rptr.3d 758 [no liability to a third party “where there is a question about whether the third party beneficiary was, in fact, the decedent’s intended beneficiary”]; Boranian, supra, 123 Cal.App.4th at p. 1018, 20 Cal.Rptr.3d 405 [no liability to a third party “where there is a substantial question about whether the third party was in fact the decedent’s intended beneficiary”].)

Because uncertainty regarding the client’s intent necessarily means that the client’s intent is not clear, certain or undisputed, the absence of a duty in this scenario is unsurprisingly dictated by the analysis of the factors bearing on whether to recognize a duty. When the client’s intent behind the directive to “Do X” is anything less than abundantly clear, there is by definition greater doubt about whether the transaction between the lawyer and the client was intended to benefit the nonclient plaintiff. As a consequence, the plaintiff’s injury is a less foreseeable result of the lawyer’s conduct, the plaintiff’s injury is less certain, the connection between the lawyer’s conduct and the plaintiff’s injury is less close, and it is less likely that allowing the malpractice claim to move forward would prevent future harm. (Paul, supra, 235 Cal.App.4th at p. 1098, 185 Cal.Rptr.3d 830 [so noting].) When the client’s intent is anything less than abundantly clear, it is more likely that the client’s interests will end up conflicting with the nonclient plaintiff’s interests, thereby placing the lawyer in an “untenable position of divided loyalty.” (Boranian, supra, 123 Cal.App.4th at p. 1014, 20 Cal.Rptr.3d 405.) What is more, courts will inevitably encounter “difficulties of proof” in resolving this conflict because the one person who can most authoritatively speak to the client’s intent—namely, the client—will in all cases involving testamentary interests be dead. (Moore, supra, 109 Cal.App.4th at p. 1297, 135 Cal.Rptr.2d 888Radovich, supra, 35 Cal.App.4th at p. 964, 41 Cal.Rptr.2d 573.) And when the client’s intent is anything less than abundantly clear, there is a greater danger of conflicting duties between competing beneficiaries as well as a greater likelihood that the lawyer will be hit with a flood of malpractice claims brought by nonclient plaintiffs asserting that the client “once promised them X” and the like; this potential liability would place an “intolerable” “burden” on the legal profession. (Changsupra, 172 Cal.App.4th at p. 84, 90 Cal.Rptr.3d 758.)

California courts have unfailingly rejected the existence of a duty where there is a question about “X.” In Ventura County Humane Society, supra, 40 Cal.App.3d 897, 115 Cal.Rptr. 464, the client directed the lawyer to designate that a charity with a specific name inherit part of her estate. When it later came to light that no charity bore that specific name provided by the client, a charity with a similar name sued the lawyer for malpractice. The court dismissed the claim, reasoning that the client’s intent to benefit the plaintiff was “ambiguous,” such that the plaintiff could not bring suit. (Id. at 902-905, 115 Cal.Rptr. 464.) And in Chang, supra, 172 Cal.App.4th 67, 90 Cal.Rptr.3d 758, the client executed a trust that named the nonclient plaintiff, but the plaintiff sued the lawyer for malpractice claiming that the client had intended to revise that trust to increase the plaintiff’s share of the estate. The court dismissed the claim, reasoning that the client’s intent to revise the bequest did not appear anywhere in the trust, that the plaintiff’s assertion about the client’s intent at best presented a “question” about the client’s intent, and that simply raising a “question” about the client’s intent did not meet the standard that the client’s intent was abundantly clear. (Id. at pp. 82-84, 90 Cal.Rptr.3d 758.)

Second, a lawyer has no duty to a nonclient plaintiff beyond implementing the client’s clear directive to “Do X” (when, as noted above, X benefits that nonclient plaintiff). The lawyer has no duty to remind the client to follow through with implementing the client’s directive once the lawyer has prepared the requested documents (Radovich, supra, 35 Cal.App.4th at pp. 954, 965, 41 Cal.Rptr.2d 573 [no duty for failing to remind the client to execute a new will that the client had asked the lawyer to draft]), no duty to “urge the [client] to consider … alternative plan[s]” to forestall will contests by persons who would lose out once the client’s intent was effectuated (Boranian, supra, 123 Cal.App.4th at pp. 1019-1020, 20 Cal.Rptr.3d 405), no duty to effectuate an expression of intent from the client that falls short of a directive (Hall v. Kalfayan (2010) 190 Cal.App.4th 927, 929, 935-938, 118 Cal.Rptr.3d 629) [no duty for failing to follow up with a client to see if the client wanted the lawyer to draft a new will when the client never asked the lawyer to do so, but had casually expressed a desire to change the then-existing disposition of her estate], and no duty to evaluate whether the client has the mental capacity to make a directive that disinherits the nonclient plaintiff (Mooresupra, 109 Cal.App.4th at p. 1290, 135 Cal.Rptr.2d 888). In other words, a lawyer’s duty to a nonclient does not extend to being a babysitter, a risk mitigation strategist, a sounding board, or a mental health specialist for the client. Making a lawyer liable in malpractice to a nonclient for failing to act in any role beyond the role of implementing the client’s undisputed intent to benefit that nonclient is bad public policy because it places an “incentive [on the lawyer] to exert pressure on the client to complete and execute estate planning documents summarily” (Radovich, at p. 965, 41 Cal.Rptr.2d 573), a result that contravenes the lawyer’s overarching duty of loyalty to the client.

Moore v. Anderson Zeigler Disharoon Gallagher & Gray

C. No duty to beneficiaries to ascertain or document testator’s capacity

The considerations identified in Radovich, as well as in Lucas and the negligent drafting and execution cases, lead to the conclusion that an attorney preparing a will for a testator owes no duty to the beneficiary of the will or to the beneficiary under a previous will to ascertain and document the testamentary capacity of the client.

First and foremost, we believe the duty of loyalty of the attorney to the client may be compromised by imposing a duty to beneficiaries in these circumstances. “[O]ur own Supreme Court has recently reaffirmed the fundamental importance of an attorney’s duty of undivided loyalty to his or her client. (Flatt v. Superior Court (1994) 9 Cal.4th 275, 289 [36 Cal.Rptr.2d 537, 885 P.2d 950]….)(Radovich, supra, at p. 962, 41 Cal.Rptr.2d 573.)

In Flatt v. Superior Court, supra, the Supreme Court held that an attorney’s duty of loyalty to an existing client negated any duty to give advice to a new or prospective client. In declining to represent the plaintiff in his case against the existing client, the attorney had no duty to inform plaintiff of the statute of limitations applicable to his proposed lawsuit or to advise him to seek alternative counsel, since defendant’s firm was already representing the existing client in an unrelated matter. Counsel could not be held liable for malpractice to the second client, as imposition of such a duty would irreconcilably conflict with the duty of loyalty to the existing client. Regarding the duty of loyalty, the court reiterated, “ ‘This obligation is a very high and stringent one. It is also an attorney’s duty to protect his client in every possible way, and it is a violation of that duty for him to assume a position adverse or antagonistic to his client without the latter’s free and intelligent consent given after full knowledge of all the facts and circumstances. [Citation.] By virtue of this rule an attorney is precluded from assuming any relation which would prevent him from devoting his entire energies to his client’s interests. …’ ” (Id. at p. 289, 36 Cal.Rptr.2d 537, 885 P.2d 950, original italics.)

 In the BiakanjaLucasHeyer line of cases, there is clearly no potential for conflict between the duty the attorney owes to the client and the duty the attorney owes to intended beneficiaries. The testator and the beneficiaries want the will allowed. The intention of the testator is certain in the circumstance presented in those cases. Only the negligence of the attorney, resulting in the invalidity of the document or bequest, frustrates the intention of the testator.

In contrast, where the testamentary capacity of the testator is the basis for a will challenge, the true intent of the testator is the central question. That intent cannot be ascertained from the will or other challenged estate plan document itself. The attorney who is persuaded of the client’s testamentary capacity by his or her own observations and experience, and who drafts the will accordingly, fulfills that duty of loyalty to the testator. In so determining, the attorney should not be required to consider the effect of the new will on beneficiaries under a former will or beneficiaries of the new will.

 The extension of the duty to intended beneficiaries recognized in Biakanja, Lucas, and Heyer to this context would place an intolerable burden upon attorneys. Not 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. The testator’s attorney would be placed in the position of potential liability to either the beneficiaries disinherited if the attorney prepares the will or to the potential beneficiaries of the new will if the attorney refuses to prepare it in accordance with the testator’s wishes. The instant case, where some children benefited under the previous will and others benefited under the later, challenged will is a perfect illustration of that burden.

 Appellants argue that the burden is ephemeral, as competent counsel has a duty to the testator to ascertain competence before drafting the will and by documenting that exploration, counsel guards against groundless challenges to the testator’s competency. We are not persuaded that imposition of such a burden on counsel would result in less litigation. Ascertaining testamentary capacity is often difficult and the potential for liability to beneficiaries who might deem any investigation inadequate would unjustifiably deny many persons the opportunity to make or amend their wills.

Factors which might suggest lack of testamentary capacity to some attorneys do not necessarily denote a lack of capacity. “It has been held over and over in this state that old age, feebleness, forgetfulness, filthy personal habits, personal eccentricities, failure to recognize old friends or relatives, physical disability, absent-mindedness and mental confusion do not furnish grounds for holding that a testator lacked testamentary capacity.” (Estate of Selb (1948) 84 Cal.App.2d 46, 49, 190 P.2d 277.) Even hallucinations and delusions do not demonstrate lack of capacity if not related to the testamentary act. (Estate of Perkins (1925) 195 Cal. 699, 704, 235 P. 45; see also Estate of Fritschi (1963) 60 Cal.2d 367, 372, 33 Cal.Rptr. 264, 384 P.2d 656 [testator in hospital with fatal cancer, physically weak, disturbed and under heavy dosage of drugs possessed testamentary capacity].) Any doubts as to capacity might be resolved by counsel by refusing to draft the will as desired by the testator, turning the presumption of testamentary capacity on its head and requiring the testator represented by a cautious attorney to prove his competency.

In the situation presented in Biakanja, Lucas, and Heyer, intended beneficiaries of the invalid will or trust documents were left with no remedy and no way to secure the undisputed intention of the testator. Their only avenue for redress was via a malpractice action against the negligent attorney. In contrast, beneficiaries disinherited by a will executed by an incompetent testator have a remedy in the probate court. They may contest the probate and challenge the will on the ground that the testator lacked testamentary capacity at the time of executing the will. That is precisely what appellants did in this case.

In addition, the other factors relevant to the duty analysis are less compelling here than in the BiakanjaLucasHeyer situation. Although appellants allege that Clyde lacked testamentary capacity, it is far less clear in this case than in the drafting and execution error cases that the testator intended to benefit appellants to the exclusion of Michael. As drafted, the will here is effective to carry out the presumed intention of the testator. It does exactly what it purports to do. The question of Clyde’s capacity or lack thereof is one that cannot be determined from the will itself, unlike those cases involving invalidly drafted or executed wills in which the document itself demonstrates the intention of the testator to benefit the beneficiary.

As did Radovich, this case presents both practical and policy reasons for refusing to extend the duty in these circumstances. We, too “must be sensitive to the potential for misunderstanding and the difficulties of proof inherent in the fact that disputes such as these will not arise until the decedent—the only person who can say what he or she intended—has died.” (Id. at p. 964, 41 Cal.Rptr.2d 573.) Similarly, the “foreseeability of harm” to appellants, and the degree of certainty that they “suffered injury” attributable to respondents’ conduct, and the “closeness of the connection” between their conduct and the injury the appellants assertedly suffered are all less than in the Biakanja, Lucas, and Heyer cases.

No California case directly addresses the duty question in the alleged incapacity context presented here. However, our conclusion is reinforced by the Restatement and by out-of-state cases.

The Restatement Third of Law Governing Lawyers, section 51, summarizes the duties of a lawyer to a nonclient, providing in relevant part that “a lawyer owes a duty to use care … (3) to a nonclient when and to the extent that: [¶] (a) the lawyer knows that a client intends as one of the primary objectives of the representation that the lawyer’s services benefit the nonclient; [¶] (b) such a duty would not significantly impair the lawyer’s performance of obligations to the client; and [¶] (c) the absence of such a duty would make enforcement of those obligations to the client unlikely….” Comment b provides the rationale for the rule. “Lawyers regularly act in disputes and transactions involving nonclients who will foreseeably be harmed by inappropriate acts of the lawyers. Holding lawyers liable for such harm is sometimes warranted. Yet it is often difficult to distinguish between harm resulting from inappropriate lawyer conduct on the one hand and, on the other hand, detriment to a nonclient resulting from a lawyer’s fulfilling the proper function of helping a client through lawful means. Making lawyers liable to nonclients, moreover, could tend to discourage lawyers from vigorous representation. Hence, a duty of care to nonclients arises only in the limited circumstances described in the Section. Such a duty must be applied in light of those conflicting concerns.” (Rest.3d Law Governing Lawyers, § 51, com. b.)

Comment f further explains the duty analysis: “A nonclient enforcing a lawyer’s duties to a client (Subsection (3)). When a lawyer knows … that a client intends a lawyer’s services to benefit a third person who is not a client, allowing the nonclient to recover from the lawyer for negligence in performing those services may promote the lawyer’s loyal and effective pursuit of the client’s objectives. The nonclient, moreover, may be the only person likely to enforce the lawyer’s duty to the client, for example because the client has died. [¶] A nonclient’s claim under Subsection (3) is recognized only when doing so will both implement the client’s intent and serve to fulfill the lawyer’s obligations to the client without impairing performance of those obligations in the circumstances of the representation. A duty to a third person hence exists only when the client intends to benefit the third person as one of the primary objectives of the representation, as in the Illustrations below…. Without adequate evidence of such an intent, upholding a third person’s claim could expose lawyers to liability for following a client’s instructions in circumstances where it would be difficult to prove what those instructions had been. Threat of such liability would tend to discourage lawyers from following client instructions adversely affecting third persons….” (Id., com. f.)

Illustration 4 following comment f is on point. In the illustration, the client retains the lawyer to prepare and help in the drafting and execution of a will leaving the estate to one other than the testator’s heir and the lawyer does so. “After Client’s death, Heir has the will set aside on the ground that Client was incompetent and then sues Lawyer for expenses imposed on Heir by the will, alleging that Lawyer negligently assisted Client to execute a will despite Client’s incompetence. Lawyer is not subject to liability to Heir for negligence. Recognizing a duty by lawyers to heirs to use care in not assisting incompetent clients to execute wills would impair performance of lawyers’ duty to assist clients even when the clients’ competence might later be challenged. …” (Rest.3d Law Governing Lawyers, supra, § 51, com. f, illus. 4, italics added.)4

These policy concerns led the Supreme Court of Massachusetts in Logotheti v. Gordon, supra, 414 Mass. 308, 607 N.E.2d 1015, to refuse to impose liability to the intestate heirs at law of the deceased client upon an attorney who drafted a will that was later invalidated on grounds of a lack of testamentary capacity and undue influence. The court affirmed the judgment dismissing the complaint against the attorney, “based on our conclusion that the [attorney] did not owe a duty of care [to the intestate heirs].” (Id. at p. 310, 607 N.E.2d at 1017.) The court reasoned that the mere foreseeability of harm to heirs is an insufficient basis upon which to impose a duty owed to them. (Id. at p. 311, 607 N.E.2d at 1017.) The court distinguished Lucas and other similar cases imposing a duty to intended beneficiaries of a competent testator: “In those cases, there is no conflict between the duty the attorney owes to his or her client and the duty the attorney owes to intended beneficiaries. The beneficiaries, like the testator, want the will allowed. [¶] The present case is significantly different from those cases. Here, there is no suggestion in the pleadings that [the heir] was an intended beneficiary of a competent testator’s will.” (Id. at p. 311, 607 N.E.2d at 1018.) “An attorney owes to a client, or a potential client, for whom the drafting of a will is contemplated, a duty to be reasonably alert to indications that the client is incompetent or is subject to undue influence, and, where indicated, to make reasonable inquiry and a reasonable determination in that regard. An attorney should not prepare or process a will unless the attorney reasonably believes the testator is competent and free from undue influence. In making the required determination, the attorney must have undivided loyalty to the client. [Citation.] A fair, objective determination in every case is in the best interest of the client. However, the financial interest of one who would only take by intestate succession would not be served in those cases where the attorney decides that the client is competent and free from undue influence, and a will is prepared. If we were to hold that, in the circumstances of this case as alleged in the complaint, the defendant owed a duty of care both to [the testator] and [the heir], we would be imposing conflicting duties on attorneys. This, we shall not do.” (Id. at pp. 311–312, 607 N.E.2d at 1018.)

We see no policy distinction between the case where the potential heir, disappointed by the making of a will is one who would take by intestate succession and the case where the disappointed heir was the beneficiary of a previously drafted will. In both circumstances, the specter of liability would subject the attorney to conflicting burdens and would dilute the undivided duty of loyalty to the client. Indeed, the circumstances of Logotheti, in which the disappointed heir succeeded in setting aside the will for incompetence and undue influence, presents a more sympathetic case for extension of a duty than that presented by the instant case, where it has never been judicially determined that the testator was incompetent at the time of executing the new will and the will was never set aside.

Other states have reached similar conclusions, refusing to allow nonclient purported third party beneficiaries to maintain malpractice actions against attorneys who had drafted wills for clients who were later asserted to have lacked capacity to make the will. In Morgan v. Roller (1990) 58 Wash.App. 728, 732–733, 794 P.2d 1313, 1316, beneficiaries under a will sued the drafter of the will to recover the costs of successfully defending a will contest. The court held the attorney had no duty to inform intended beneficiaries under the will of his view, based on subsequent contacts with the testator, that she was incompetent at the time the will was executed. (See, e.g., Francis v. Piper (1999 Minn.App.) 597 N.W.2d 922 [attorney had no duty to testator’s sole living relative who claimed that testator lacked capacity to enter into the will].)

Appellants contend that Hiemstra v. Huston (1970) 12 Cal.App.3d 1043, 91 Cal.Rptr. 269 “foreshadowed that a testator’s lack of capacity could result in the testator’s lawyer confronting potential liability to an adversely affected beneficiary.” We disagree.

In Hiemstra the appellate court affirmed an order of dismissal following the sustaining of a demurrer. The plaintiff, decedent’s son and beneficiary under a previous will, alleged that the attorney was negligent in drafting a will for decedent at the request of decedent’s wife, who advised the attorney that her husband was seriously ill. The plaintiff alleged the attorney had drafted the will without instruction from the testator and without knowing decedent’s physical or mental condition, the amount or nature of his properties, or his true dispositive testamentary wishes or intent, family situation or prior wills and thereafter prevailed upon the decedent to leave the estate to his wife, materially reducing the plaintiff’s share. (Id. at p. 1045, 91 Cal.Rptr. 269.) The plaintiff argued that he had stated a cause of action under the Biakanja, Lucas, and Heyer. The appellate court disagreed, declining to extend the duty to the disappointed beneficiary, stating:

“However, unlike the foregoing three cases in which, through an alleged failure of defendant to use care in drafting the will, a legal defect resulted therein which defeated in whole or in part the stated intent of the testator in and the very objective of the will, the thrust of plaintiff’s cause herein is negligence consisting of drafting a will without instructions from the testator and in ignorance of his true testamentary wishes. [¶] Nothing in the third amended complaint points to any claim that defendants’ alleged negligence resulted in any legal deficiency in the will which would prevent its probate and frustrate the testator’s expressed intent therein to leave the bulk of his estate to his widow. [Italics added.] Nor therein has plaintiff asserted either as a conclusion or by allegation of ultimate facts that the will failed to reflect the testator’s true dispositive and testamentary intent or desires at the time it was approved and executed by him and that it did not contain exactly what he wanted it to contain and dispose of his estate in the manner in which the testator then intended. [Original italics.] Further plaintiff has failed to allege that the will was not validly executed; that the testator was not possessed of testamentary capacity or that the will was executed as the result of undue influence. (Italics added.) While the pleading asserts the testator was confined to the hospital with a serious illness and died 13 days after execution of the document, illness alone does not cast doubt on his testamentary capacity…. Testamentary capacity is always presumed to exist unless the contrary is established. [Citation.]” (Id. at pp. 1046–1047, 91 Cal.Rptr. 269.)

“In each of the foregoing cases [Biakanja, Lucas, and Heyer] the alleged negligence of the draftsman resulted in some kind of legal defect in the will which ultimately frustrated in whole or in part the testator’s expressed intent and the very objective of the document which but for the defect would have attained. The situation is far different from the one presented by plaintiff’s pleading in which the will, admittedly validly executed by the testator possessed of testamentary capacity, contained no legal deficiency which prevented his wishes expressed therein from being carried out.” (Id. at p. 1048, 91 Cal.Rptr. 269, italics added.)

Appellants contend the Hiemstra opinion’s caveat suggests that a testator’s lawyer would confront potential malpractice liability to a beneficiary for allowing the testator who lacked mental capacity to execute a dispositive instrument. Although the court seized upon the absence of a direct allegation that the testator lacked testamentary capacity, the court’s holding was not dependent upon that dicta. The plaintiff had alleged that the will was drafted by the attorney without knowing the decedent’s physical or mental condition or his testamentary wishes or intent—akin to the allegations here that counsel was negligent in failing to investigate the decedent’s capacity. The Hiemstra court distinguished Biakanja, Lucas, and Heyer on the grounds that if the plaintiff were deprived of a substantial part of his father’s estate, it was not from negligent drafting resulting in a legal defect in the will which frustrated the testator’s expressed intent and objective as expressed in the document itself, but from the testator’s change of mind. (Id. at p. 1048, 91 Cal.Rptr. 269.)

Finally, appellants rely upon several secondary sources, including Model Rules of Professional Conduct published by the American Bar Association (Model Rules), ACTEC Commentaries on the Model Rules of Professional Conduct published by the American College of Trusts and Estate Counsel Foundation (ACTEC Commentaries), and various practice guides published by California Continuing Education of the Bar (CEB) and others for the proposition that an estate planning lawyer has a duty to determine that his or her client has testamentary capacity when executing a will or dispositive instrument and that when there is doubt, a competent attorney should take reasonable steps to confirm the client’s capacity and to preserve evidence of that determination.

These secondary sources are a slim reed upon which to posit such duties to nonclient beneficiaries. First, we believe that California law, informed by the Restatement and the law of sister states, provides an adequate guide for analysis. Moreover, the practice guides, secondary sources, and commentaries relied upon by appellants do not so clearly advocate for a duty as appellants maintain. More to the point, several of the cited sources recognize the practical pitfalls inherent in imposing a duty upon counsel to assess the capacity of the testator and none indicate that such duty would run to beneficiaries rather than solely to the testator. For example:

Rule 1.14 of the Model Rules provides; “(a) When a client’s ability to make adequately considered decisions in connection with the representation is impaired, whether because of minority, mental disability or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client. (b) A lawyer may seek the appointment of a guardian or take other protective action with respect to a client only when the lawyer reasonably believes that the client cannot adequately act in the client’s own interest.”

The ACTEC Commentaries on the Model Rules have advised, “Testamentary Capacity. If the testamentary capacity of a client is uncertain, the lawyer should exercise particular caution in assisting the client to modify his or her estate plan. The lawyer generally should not prepare a will or other dispositive instrument for a client who the lawyer reasonably believes lacks the requisite capacity. On the other hand, because of the importance of testamentary freedom, the lawyer may properly assist clients whose testamentary capacity appears to be borderline. In any such case the lawyer should take steps to preserve evidence regarding the client’s testamentary capacity.” (ACTEC, Commentaries (3d ed.1999) at p. 218, italics added.) 

A CEB Action Guide citing the ACTEC Commentaries advises that “[i ]t is difficult for an attorney to discharge both the duty of undivided loyalty and the duty to act competently when a client’s testamentary capacity is questionable, because [¶] a. An attorney should not prepare a will or other dispositive instrument for a client whom the attorney believes lacks the requisite capacity [citations]; but [¶] b. The attorney ‘may properly assist clients whose testamentary capacity appears to be borderline.’ [Citation.]” (Camp et al., Action Guide: Capacity and Undue Influence: Assessing, Challenging, and Defending (Cont.Ed.Bar Fall 2001) p. 13, italics added.) This “Action Guide” also advises that the attorney “[m]ake it clear to the client and others who may be involved that the attorney’s duties, including the duty of confidentiality, are owed only to the client.” (Id. at p. 10, italics added.)

A CEB program handbook counsels that “prudent practitioners should be aware of the statutory standards under Prob[ate] C[ode] § 811 [et seq.] for determination of capacity, the nature of mental function deficits specified, and ‘evidence of a correlation between the deficit(s) and the decision or acts in question’ [citation].” (Wilcox, Ethical Considerations in Elder Law Practice in Assessing Capacity and Undue Influence: Avoiding Will Contests—Litigating Will Contest, Undue Influence, and Capacity Cases (Cont.Ed.Bar Program Handbook, Mar. 2002), § 2.41C, p. 90.) Nevertheless, that same program handbook concludes, in accordance with case law, that because the attorney owes his or her undivided loyalty to the interests of the client, the attorney’s only duty of care is to intended beneficiaries of a testator-client whose testamentary rights are impaired by negligent drafting. (Id., § 2.27, p. 83.) So paramount is the duty of loyalty, that in this state, the attorney may not institute conservatorship proceedings on a client’s behalf without consent, even when the attorney concludes the client is incompetent, because of the prohibition against disclosure of client confidences. (Id., § 2.24, p. 82.)

It 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. However, 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 investigation. None of the cited secondary sources appear to even suggest imposition on the attorney of such a duty to nonclients. We conclude that the policy considerations present in these circumstances and discussed above strongly militate against imposition on the testator’s lawyer of a duty to nonclient beneficiaries to investigate, evaluate and ascertain the testator’s capacity or to document the same.

We conclude the trial court properly sustained respondents’ demurrer in this action. Because appellants have conceded there is no reasonable possibility that this defect in the complaint can be cured by amendment, the trial court did not err in granting the demurrer without leave to amend.

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Thank you for reading. Please do pass this blog and blog post and information to other people who would be interested as it is only through collaboration and sharing that great things and success are more quickly achieved.

Regards, and best to you,

David Tate, Esq.

David Tate, Esq. (and inactive CPA)

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My two blogs are: – business, D&O, audit committee, governance, compliance, etc. – previously at

Trust, estate, conservatorship, elder and elder abuse, etc. litigation and contentious administrations

David Tate, Esq. (and inactive California CPA) – practicing only as an attorney in California.