However, a lawyer generally does not owe such duties to a non-client. Moore v. Anderson Zeigler Disharoon Gallagher & Gray (2003) 109 Cal.App.4th 1287, 1294. Furthermore, an attorney does not owe a duty to non-clients to ascertain a client competence's when making a trust or will revision. Id. at 1290.
In Moore, decedent's children sued the estate planning attorney for malpractice. Just prior to his passing, decedent was in poor health. According to the appellate opinion "by June 2000 Clyde was extremely sick, debilitated, and confused. Clyde had undergone chemotherapy and was under the influence of powerful medications, including pain medication." Nevertheless, the attorney drafted and decedent executed an amendment to his trust. The amendment was executed on June 21, 2000 and decedent passed away on June 23, 2000. Hence, at most, decedent had 48 hours to live when he executed the amendment.
This amendment reduced the distribution to some of the children. Litigation then ensued between the beneficiaries.
Surprise surprise.
Once the litigation had settled, they then sued the estate planning attorney and his law firm for malpractice.
The plaintiffs, non-clients, sought to impose a duty on the attorney to ascertain decedent's mental capacity and since decedent was extremely ill, the attorney acted negligently in "failing to 'assure, confirm and document' that Clyde had capacity and was competent to execute his will and trust amendments."
The Moore Court rejected imposing such a duty, finding that determining "testamentary capacity is often difficult and the potential for liability to beneficiaries who might deem any investigation inadequate would unjustifiably deny many persons the opportunity to make or amend their wills."
"Factors which might suggest lack of testamentary capacity to some attorneys do not necessarily denote a lack of capacity. It has been held over and over in this state that old age, feebleness, forgetfulness, filthy personal habits, personal eccentricities, failure to recognize old friends or relatives, physical disability, absentmindedness and mental confusion do not furnish grounds for holding that a testator lacked testamentary capacity." (Estate of Selb (1948) 84 Cal.App.2d 46, 49."
