Heyer v. Flaig
70 Cal. 2d 223, 74 Cal. Rptr. 225, 449 p.2d 161 (1969)
Rule of Law:
The statute of limitations for an attorney malpractice action brought by an intended testamentary beneficiary for negligently drafted will provisions begins to run upon the death of the testator, not from the date the will was drafted, because the injury to the beneficiary is not irremediable and their interest does not vest until the testator's death.
Facts:
- In December 1962, Doris Kilburn retained attorney Flaig to prepare her will.
- Doris Kilburn informed Flaig that she wished her entire estate to pass to her two daughters (the plaintiffs) and that she intended to marry Glen Kilburn.
- On December 21, 1962, Doris Kilburn executed the will prepared by Flaig.
- On December 31, 1962, Doris Kilburn married Glen Kilburn.
- The will prepared by Flaig did not mention Glen Kilburn, except to name him as executor, and arguably lacked adequate provision to defeat the rights of a post-testamentary spouse.
- On July 9, 1963, Doris Kilburn died.
- In the subsequent probate proceedings, Glen Kilburn claimed a portion of Doris Kilburn's estate as a post-testamentary spouse under Probate Code section 70.
- Flaig allegedly failed to advise Doris Kilburn, both before and after her marriage, of the legal consequences of a post-testamentary marriage or the need to amend her will.
Procedural Posture:
- The will of Doris Kilburn was admitted to probate in the Los Angeles County Superior Court.
- Glen Kilburn claimed a portion of the estate in the probate proceedings as a post-testamentary spouse under Probate Code section 70.
- Plaintiffs (Doris Kilburn's daughters) sued defendant Flaig in the trial court, alleging negligence and seeking punitive damages.
- Defendant Flaig filed a demurrer to the complaint, arguing, among other things, that the action was barred by the two-year statute of limitations (Code Civ. Proc., § 339, subd. 1).
- The trial court sustained the demurrer on the ground that the statute of limitations barred the action because it was filed later than two years after the alleged negligent act (the drafting of the will).
- Plaintiffs failed to amend their complaint after leave to do so was granted.
- The trial court granted defendant's motion to dismiss the action.
- Plaintiffs appealed the dismissal.
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Issue:
Does the statute of limitations for an attorney malpractice action, brought by an intended beneficiary of a will, commence from the date the attorney negligently drafted the will or from the date of the testator's death?
Opinions:
Majority - Tobriner, J.
No, the statute of limitations for an attorney malpractice action brought by an intended testamentary beneficiary does not commence from the date the attorney negligently drafted the will; it begins to run upon the death of the testator. The court reasoned that the cause of action accrues at the testatrix's death because that is when the negligent failure to perfect the testamentary scheme becomes irremediable and the injury to the intended beneficiary occurs. Until the testator's death, the intended beneficiaries possess no recognized legal interest, as the will is ambulatory and can be changed, meaning no actionable injury has yet occurred. The court reiterated that attorneys owe a duty of care directly to intended testamentary beneficiaries, as established in Lucas v. Hamm (which applied the policy factors from Biakanja v. Irving). This duty is rooted in public policy to prevent harm and ensure attorneys responsibly exercise their trust. The court also noted the continuing nature of the attorney's duty to advise the testatrix and correct any defects up until her death. It distinguished the beneficiary's claim, which is for an irrevocable loss, from a potential claim by the testator, whose damages would be slight and who could create a new estate plan.
Dissenting - McComb, J.
Yes, the statute of limitations for an attorney malpractice action in this context should commence from the date of the negligent act. Justice McComb dissented, stating that he would affirm the trial court's dismissal orders for the reasons expressed by Justice Bishop in the opinion prepared for the Court of Appeal. This implicitly means the dissent adhered to the general rule that the statute of limitations for legal malpractice runs from the time of the negligent act (the drafting of the will).
Analysis:
This case significantly altered the application of the statute of limitations in attorney malpractice cases involving wills, ensuring a viable remedy for intended beneficiaries. By identifying the testator's death as the accrual point, the court acknowledged the unique nature of testamentary documents where harm only materializes upon death, thereby preventing claims from being barred before the injury is even discoverable. The decision reinforces the tort-based duty owed by attorneys to third-party beneficiaries established in Lucas v. Hamm, prioritizing the policy of preventing future harm and providing a remedy for substantial, otherwise uncompensable losses. This ruling protects heirs from latent negligence that would otherwise go unaddressed.
