Heyer v. Flaig

Decision Date22 January 1969
CourtCalifornia Supreme Court
Parties, 449 P.2d 161 Arden Bovee HEYER et al., Plaintiffs and Appellants, v. Joseph Lawrence FLAIG, Defendant and Respondent. L.A. 29571.

Vernon S. Gray, Los Angeles, for plaintiffs and appellants.

Brill, Hunt, DeBuys & Burby, Los Angeles, Mitchell L. Lathrop, Pasadena, Crider, Tilson & Ruppe and Abe Mutchnick, Los Angeles, for defendant and respondent.

TOBRINER, Justice.

This case presents a single, basic question: When does the statute of limitations commence to run against an intended beneficiary of a will who, under the authority of Lucas v. Hamm (1961) 56 Cal.2d 583, 15 Cal.Rptr. 821, 364 P.2d 685, acquires a right of action against an attorney for malpractice in negligently failing to fulfill the testamentary directions of his client? Under the alleged facts of this case, we conclude that the limitations period starts from the date that the cause of action accrues: namely, the incidence of the testatrix' death when the negligent failure to perfect the requested testamentary scheme becomes irremediable and the impact of the injury occurs. Accordingly, the trial court erroneously sustained a demurrer to plaintiff's complaint on the ground that the statute of limitations bars the present action brought later than two years 1 after the defendant drafted the will. Since the plaintiffs filed their complaint within two years of the testatrix' death, the cause avoids the statutory bar.

The plaintiffs' complaint sets forth inter alia the following allegations: In December 1962 Doris Kilburn, the testatrix, retained defendant Flaig to prepare her will. She told defendant that she wished all of her estate to pass to her two daughters, plaintiffs in this action. She also told him that she intended to marry Glen Kilburn. On December 21, 1962, Doris Kilburn executed a will prepared by defendant. On December 31, 1962, she married Glen Kilburn.

The will purports to leave the entire estate of Doris Kilburn to the plaintiffs. The testament however, does not mention the testatrix' husband, except that it names him executor. On July 9, 1963, Doris Kilburn died; thereafter the Los Angeles County Superior Court admitted to probate the above-described document as her last will and testament. In these probate proceedings, Glen Kilburn claimed a portion of the estate as a post-testamentary spouse under Probate Code section 70. 2

Plaintiffs allege that defendant negligently failed to advise Doris Kilburn of the consequences of a post-testamentary marriage, and negligently failed to include in the will any provision as to the intended marriage. Plaintiffs allege further that, subsequent to the marriage, and up until the date of testatrix' death, the defendant negligently failed to advise her of the legal consequences of omitting from the will any provision relative to her husband's claim to a share of her estate. Plaintiffs allege that this negligence caused them to suffer damages in the amount of $50,000. They also pray for $50,000 punitive damages on the ground that defendant proceeded maliciously, in wanton disregard of their rights.

Alleging uncertainty, ambiguity, unintelligibility, failure to state facts sufficient to constitute a cause of action, and failure to state a cause of action by reason of the bar of the statute of limitations, section 339, subdivision 1, of the Code of Civil Procedure, defendant demurred to the complaint. On the stated basis that the statute of limitations bars the action because plaintiffs filed the complaint later than two years after the commission of the 'negligent act' (presumably the drafting of the will), 3 the trial court sustained the demurrer. Following plaintiffs' failure to take advantage of the court's leave to amend, the court granted defendant's motion to dismiss the action pursuant to section 581, subdivision 3, of the Code of Civil Procedure. From this dismissal plaintiffs appeal.

1. An attorney who negligently fails to fulfill a client's testamentary directions incurs liability in tort for violating a duty of care owed directly to the intended beneficiaries.

In the case of Lucas v. Hamm, supra, 56 Cal.2d 583, 15 Cal.Rptr. 821, 364 P.2d 685, we embraced the position that an attorney who erred in drafting a will could be held liable to a person named in the instrument who suffered deprivation of benefits as a result of the mistake. Although we stated that the harmed party could recover as an intended third-party beneficiary of the attorney-client agreement providing for legal services, we ruled that the third party could also recover on a theory of tort liability for a breach of duty owed directly to him. At the heart of our decision in Lucas v. Hamm lay this recognition of duty.

In the earlier case of Biakanja v. Irving (1958) 49 Cal.2d 647, 320 P.2d 16, 65 A.L.R.2d 1358, we had held that a notary public who negligently failed to direct proper attestation of a will became liable in tort to an intended beneficiary who suffered damage because of the invalidity of the instrument. In that case, the defendant argued that the absence of privity deprives a plaintiff of a remedy for negligence committed in the performance of a contract. In rejecting this contention we pointed out that the inflexible privity requirement for such a tort recovery has been virtually abandoned in California. (49 Cal.2d at pp. 649--650, 320 P.2d at p. 19.) We then analyzed the bases for imposing such a duty: 'The determinaiton whether in a specific case the defendant will be held liable to a third person not in privity is a matter of policy and involves the balancing of various factors, among which are the extent to which the transaction was intended to affect the plaintiff, the foreseeability of harm to him, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, and the policy of preventing future harm.'

Applying the Biakanja criteria to the facts of Lucas, the court found that attorneys incur a duty in favor of certain third persons, namely, intended testamentary beneficiaries. In proceeding to discuss the contractual remedy of such persons as the plaintiffs in Lucas, we concluded that 'as a matter of policy, * * * they are entitled to recover as third-party beneficiaries.' (56 Cal.2d at p. 590, 15 Cal.Rptr. at p. 825, 364 P.2d at p. 689.) The presence of the Biakanja criteria in a contractual setting led us to sustain not only the availability of a tort remedy but of a third-party beneficiary contractual remedy as well. This latter theory of recovery, however, is conceptually superfluous since the crux of the action must lie in tort in any case; there can be no recovery without negligence. This reading of Lucas is reinforced by the following language recited with approval in the case of Eads v. Marks (1952) 39 Cal.2d 807, 811, 249 P.2d 257, 260: 'It has been well established in this state that if the cause of action arises from a breach of a promise set forth in the contract, the action is excontractu, but if it arises From a breach of duty growing out of the contract it is ex delicto. * * *'

In the recent case of Connor v. Great Western Savings and Loan Association (1968) Cal., 73 Cal.Rptr. 369, 447 P.2d 609, we held that a lending institution, which financed and 'shared in the control' (73 Cal.Rptr. 369, 447 P.2d 609) of a residential tract development, and 'cooperated' with the developer in that undertaking (id.), incurred liability in tort to the buyers of improperly built houses. We said that the lending institution owed a duty to the purchasers 'to exercise reasonable care to prevent the construction and sale of seriously defective homes' (ditto opn., p. 23, 378 of 73 Cal.Rptr., p. 618 of 447 P.2d). Connor, like the preceding cited cases, recognizes that liability may flow from relationships which are not expressed by contract between the parties, not in 'privity' with each other, and that such duty could emanate from the policy considerations described in Biakanja v. Irving, supra, 49 Cal.2d 647, 320 P.2d 16. Indeed, the early common law posited 'rights and duties upon the relationship of parties within the socio-economic system rather than upon factors, such as consentual agreement, dependent on the will of individual litigants' and such relationship concepts served as the major framework of the legal structure. (See Tobriner and Grodin, The Individual and the Public Service Enterprise in the New Industrial State (1967) 55 Cal.L.Rev. 1247, 1249--1250.) The Biankanja line of cases does no more than apply to the issues there involved these concepts of duties and rights based upon the relationship between the tortfeasor and the injured parties.

Turning to the present case we therefore concentrate on the tortious aspect of defendant's conduct. We inquire as to whether there was such a duty; the breach, if any; the possibility of the bar of the statute of limitations.

When an attorney undertakes to fulfill the testamentary instructions of his client, he realistically and in fact assumes a relationship not only with the client but also with the client's intended beneficiaries. The attorney's actions and omissions will affect the success of the client's testamentary scheme; and thus the possibility of thwarting the testator's wishes immediately becomes foreseeable. Equally foreseeable is the possibility of injury to an intended beneficiary. In some ways, the beneficiary's interests loom greater than those of the client. After the latter's death, a failure in his testamentary scheme works no practical effect except to deprive his intended beneficiaries of the intended bequests. Indeed, the executor of an estate has no standing to bring an action for the amount of the bequest against an attorney who negligently prepared the estate plan, since in...

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