Gonsalves v. Superior Court of Alameda County (California)

19 Cal. App. 4th 1366, 24 Cal. Rptr. 2d 52 (1993)



The primary duty of an attorney is to the client and is fulfilled if the attorney draws the will as requested. An attorney who fails to investigate the testamentary capacity of his or her client is not liable in tort to a former beneficiary disinherited by the will drawn by the attorney. Nor is the attorney liable in contract since the disinherited person is not a third party beneficiary of the contract between attorney and testatrix.


Decedent's niece filed an action against an attorney and her law firm after decedent, her aunt, disinherited the niece under a will and trust that the attorney had drafted. The niece argued that the attorney had destroyed an earlier will giving all of her aunt's property to the niece and that another party had taken it upon herself to make arrangements with the attorney to prepare a new will for the aunt knowing that her aunt was dying and lacked testamentary capacity. In a second cause of action for professional negligence, the niece alleged that with a reasonable amount of diligence, the attorneys would have known of the lack of testamentary capacity of her aunt and should have refused to permit the execution of the documents. The niece further alleged that the attorney had either deliberately conspired with the other party or had negligently acted to defeat the niece's right of inheritance. The superior court denied the attorneys' motion for summary judgment, and the attorneys petitioned for an alternative writ, seeking review of the decision of the Superior Court of Alameda County (California). The superior court subsequently granted the attorneys' motion for summary judgment, but the appellate court opted to resolve the issues presented on the merits.


Was an attorney and her law firm either liable in tort or in contract to a niece disinherited by the aunt's will drawn by the attorney?




The court discharged the writ, holding that the attorneys were entitled to summary judgment, but that the petition for the alternative writ was moot. The court found any failure of the attorneys to investigate decedent's testamentary capacity did not make them liable in tort because their primary duty to decedent was fulfilled when they were convinced of decedent's testamentary capacity by their own observations and experience and drew the will as requested. The court determined the attorneys were not liable in contract because the niece, who was the real party, was not a third party beneficiary of the deceased aunt's and her attorneys' contract.  Moreover, the niece had a remedy in contesting the lack of testamentary capacity. 

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