In a case of first impression in California, a state appeals court rules that an attorney who prepared changes to a testator's will owed no duty to the beneficiaries under a previous will to ascertain and document the testator''s capacity. Moore v. Anderson Zeigler (Cal. Ct. App., 1st, No. A099643, June 20, 2003).
In September 1999, attorney Rob Disharoon prepared an amendment to trust documents for Clyde P. Smith. The amendment provided that after the distribution of certain assets, the residue of his estate was to be distributed to eight of Mr. Smith's nine adult children. In June 2000, when Mr. Smith was terminally ill and extremely weak, Mr. Disharoon prepared new trust documents for him that fundamentally changed his estate plan, greatly benefiting the ninth child who had been overlooked in the previous plan, at the expense of the other children. Following Mr. Smith's death on June 23, 2000, a legal dispute ensued among the children, which was eventually settled.
After the settlement, five of the children sued Attorney Disharoon and his firm for malpractice, claiming that Mr. Smith lacked testamentary capacity when he executed the June 2000 amendments to his estate plan, that Attorney Disharoon should have known that Mr. Smith's testamentary capacity was questionable, and that he acted negligently in failing to confirm that Mr. Smith was competent to execute the amendments. The trial court sustained Attorney Disharoon's demurrer, holding that he did not owe potential heirs any duty to determine Mr. Smith's capacity to execute trust documents.
The Court of Appeal of California, First District, affirms, ruling that 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 client's testamentary capacity. The extension of such a duty, the court writes, "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 court goes on, "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."
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