Moore v. Anderson Zeigler Disharoon Gallagher & Gray

In Moore v. Anderson Zeigler Disharoon Gallagher & Gray (2003) 109 Cal.App.4th 1287, the testator's children alleged that the attorney who had drafted amendments to their father's estate plan, which reduced the children's share, was negligent in failing to ascertain his client's testamentary capacity. ( Id. at p. 1290.) The children alleged that as a result of the attorney's failure to determine their father's testamentary capacity and to document that evaluation, they received less through their settlement of ensuing estate litigation than they would have received under their father's estate plan prior to execution of the questioned amendments. (Ibid.) After extensive review of the relevant authorities and discussion of the Biakanja/Lucas factors, the court held that the testator's attorney owed no such duty to the beneficiaries. ( Moore, supra, 109 Cal.App.4th at p. 1307.) The court concluded: "It may be that prudent counsel should refrain from drafting a will for a client the attorney reasonably believes lacks testamentary capacity or should take steps to preserve evidence regarding the client's capacity in a borderline case. However, that is a far cry from imposing malpractice liability to nonclient potential beneficiaries for the attorney's alleged inadequate investigation of evaluation of capacity or the failure to sufficiently document that investigation." (Ibid.)