An attorney who waited more than eight months to carry out his elderly client's alleged wish that her residence be transferred to her adult daughter did not owe a duty of care to the daughter. Featherson v. Farwell(Cal Ct. App., 2d, No. B169057, Nov. 1, 2004).
While hospitalized in October 1997, Marie Featherson (the widowed mother of three adult children) allegedly summoned her lawyer, Gary Farwell, to the hospital and asked him to prepare a deed transferring her residence to one of her daughters, Mary Featherson. Attorney Farwell prepared a grant deed, which Marie allegedly signed and Attorney Farwell notarized. However, Attorney Farwell waited until June 1998 to send the deed to the recorder's office, and the deed was not recorded until August 20, 1998, two months after Marie's death. Attorney Farwell later testified that he felt obligated to retain the deed until he could talk to Marie after her release from the hospital.
Marie's son, Charles Featherson, the personal representative of Marie's estate, petitioned the probate court for the transfer of Marie's residence to the estate. The probate court granted Charles's petition, finding that Marie did not intend to deliver the deed. Mary then filed an action against Attorney Farwell, alleging that he was negligent in failing to record the deed before Marie's death, causing her to lose the property in the probate proceeding. In an amended complaint, Mary claimed Attorney Farwell owed her a duty as a third-party beneficiary of the services he rendered to Marie. The trial court sustained Attorney Farwell's demurrer, and Mary appealed.
The Court of Appeal of California affirms. The court rules that although an attorney retained to provide testamentary legal services to a testator may also have a duty to act with due care for the interests of intended third-party beneficiaries, "the scope of duty owed to the beneficiary is determined by reference to the attorney-client relationship." [emphasis in original.] In this case, the court holds that extending his duty to Mary could have created an incentive for Attorney Farwell to exert pressure on Marie to complete her estate planning documents summarily, or make him the arbiter of Marie's true intent. The court observes that Attorney Farwell's lawyerly instincts were vindicated by the probate court's finding that Marie did not intend to deliver the deed.
In another case decided by the same court on the same day, the court uses similar reasoning to reverse a lower court judgment against an attorney who oversaw a questionably competent client's execution of a will that partially excluded her children as beneficiaries. Boranian v. Clark(Cal Ct. App., 2d, No. B165402, Nov. 1, 2004).
To download the full text of the Featherson decision, go to: https://attorney.elderlawanswers.com/featherson-v-farwell-cal-ct-app-2d-no-b169057-nov-1-2004-6294
To download the full text of the Boranian decision, go to: https://attorney.elderlawanswers.com/boranian-v-clark--cal-ct-app-2d-no-b165402-nov-1-2004-6295
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