Feb 05, 2004

Your parent’s attorney may not have duty to investigate capacity

By Donald J. DeVries
Attorney at Law
Special to the Times

This week’s question:
I just found out that my father disinherited me when he signed his new trust last year. He just died. The problem is that when he signed it, he really did not understand what he was doing. This was because of his advanced age (92) and because he was on heavy medications at the time and really out of it. Can I sue his attorney for legal malpractice?

Shannon S.
Almaden Valley

Dear Shannon:
The short answer to your question is maybe not, but you should of course see your own attorney.
Having said that, you might be interested in a fairly new case from the California Court of Appeal, First District. The case is entitled Moore v. Anderson Zeigler Disharoon Gallagher & Gray (2003) 109 Cal.App.4th 1287, 135 CalRptr.2d 888.

In that case, Clyde Smith died, leaving an amended trust. The amended trust was signed in June, 2000, and it called for giving all of the assets in question to the youngest child after Clyde’s death.

Of course, this did not set well with Clyde’s other children and five of the nine of them sued Clyde’s lawyer and law firm for legal malpractice. They alleged that when their father signed the 2000 amendment that he was “extremely sick, debilitated, and confused”, that he had undergone chemotherapy and was under the influence of powerful medications, including pain medication.

The disinherited children also alleged in their suit that Clyde lacked the capacity to know or understand the nature of his property or trust dispositions, nor recall his relation to his family members and children. Clyde died two days after the trust amendment and other documents were signed.

The first suit was between the children. It was long and expensive and eventually resulted in a settlement, but kept open the question of legal capacity. After that settlement the disinherited beneficiaries sued the lawyer and law firm that drafted Clyde’s trust amendment and other documents, alleging legal malpractice. They argued that the attorney had a duty to them to ascertain and document Clyde’s capacity when the trust documents were signed.

In a case of “first impression”, the Court of Appeal ruled that an attorney preparing a will for a client owes no duty to a beneficiary of a will or to a beneficiary under a previous will to ascertain and document testamentary capacity of the client.

The reasons for this rule were discussed by the Court and included the possible dilemma for the attorney in this area in favoring one or more beneficiaries over another one or more beneficiaries.

One reason for the rule of non-liability against the attorney is that ascertaining testamentary capacity is difficult. Courts have repeatedly held that “old age, feebleness, forgetfulness, filthy personal habits, personal eccentricities, failure to recognize old friends or relatives, physical disability, absentmindedness and mental confusion” are not grounds for holding that a person lacks testamentary capacity.

The Court also stated that hallucinations and delusions do not demonstrate lack of capacity if not related to the testamentary act.

If the attorney had a duty to conduct a thorough investigation to determine capacity, many would not do that in view of the cost and risk involved and thus many clients would be denied the right to have their trust just as they wanted it.

The Court also noted that disinherited beneficiaries claiming lack of testamentary capacity already have a legal remedy. They may challenge the will in the probate court and prove incapacity if they can.

There are very limited cases in which the attorney could possibly be sued for legal malpractice, but such limited situations are outside the scope of this article—another reason to consult with your own attorney.

So, good luck with your situation, Shannon. Remember that every case is different and that the Moore case discussed above may not apply to your situation at all.

Donald J. DeVries
Almaden Valley

Donald J. DeVries is an attorney practicing law in Almaden Valley. If you would like him to answer your question in his next Almaden Times column, you can reach him by email at don@almadenvalleylawyers.com, fax at (408)268-6502, telephone at (408)268-9500, or mail at DeVries & Solmonson, 6475 Camden Avenue, Suite 200, San Jose, CA 95120. Your matters are personal and private, so of course, he will not disclose your identity or any details about your situation. Want to learn about a specific legal issue or how DeVries can help you? Visit his web site at www.almadenvalleylawyers.com. Almaden Times columns since 1986 are available there. DeVries writes this column to provide you with general information about important legal matters affecting California residents—not to give you legal advice about your specific matter. No attorney-client relationship is created by these articles. The law is complex and constantly changing and varies from state to state. So you should consult an attorney before taking any action that would affect your personal or business matters.