Mickel v. Murphy
147 Cal. App. 2d 718, 305 P.2d 993, 1957 Cal. App. LEXIS 2304 (1957)
Premium Feature
Subscribe to Lexplug to listen to the Case Podcast.
Rule of Law:
A non-attorney who acts merely as a scrivener in preparing a will is generally not liable in tort to an intended beneficiary for negligence in drafting or failing to properly advise on execution requirements, due to the absence of a duty owed to third parties not in contractual privity.
Facts:
- Henry Mickel was married to the plaintiff, Mrs. Mickel.
- On April 30, 1952, the defendant, who was not a licensed attorney, advised regarding, drew, prepared, and notarized a document titled 'Last Will and Testament of Henry Mickel.'
- The defendant did not advise Henry Mickel that a will required attestation by two witnesses.
- The prepared will intended for Mrs. Mickel to receive Henry Mickel's entire estate.
- Henry Mickel died on September 4, 1954, with separate property valued at $34,411.94.
- Because the will was not witnessed as required by law, it was null and void, and Henry Mickel died intestate.
- As a result, one-half of Henry Mickel's separate property, valued at approximately $17,000, passed to his mother instead of Mrs. Mickel.
Procedural Posture:
- Mrs. Mickel (plaintiff) filed a tort action for damages against the defendant in a trial court, alleging unlawful practice of law by the defendant.
- The defendant filed a general demurrer to Mrs. Mickel's second amended complaint.
- The trial court sustained the demurrer and granted Mrs. Mickel 10 days to file an amended complaint.
- Mrs. Mickel declined to amend her complaint.
- The trial court entered judgment against Mrs. Mickel.
- Mrs. Mickel appealed the judgment to the California District Court of Appeal.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Does a non-attorney who prepares a will without advising on proper attestation owe a legal duty to a prospective beneficiary, such that the beneficiary can sue for damages when the will fails due to lack of witnesses?
Opinions:
Majority - Mussell, J.
No, a non-attorney who prepares a will without advising on proper attestation does not owe a legal duty to a prospective beneficiary, precluding the beneficiary from suing for damages when the will fails due to lack of witnesses. The court affirmed the judgment, holding that the complaint failed to state a cause of action. The defendant's actions, as alleged, amounted to those of a 'scrivener' of legal instruments, which generally does not constitute the practice of law unless specific facts show the defendant acted beyond merely recording information. There was no allegation that the defendant represented himself as an attorney or that Henry Mickel relied on him to ensure proper witnessing. Citing Buckley v. Gray, the court reiterated that liability for professional negligence (such as in drafting a will) extends only to the client with whom the contract of employment existed, and not to third parties, unless fraud, collusion, or a malicious act is involved. The plaintiff, Mrs. Mickel, was not a party to any agreement between Henry Mickel and the defendant and therefore could not sue for the defendant's carelessness or negligence. Furthermore, the court held that a violation of a criminal statute (unlawful practice of law under Business and Professions Code section 6126) does not, by itself, create a civil cause of action for damages unless the legislature explicitly provides one. To constitute an actionable tort, a legal duty must be owed by the defendant to the injured party, and Mrs. Mickel had no vested right or interest in Henry Mickel's property until his death, and then only if the will was valid, which it was not.
Analysis:
This case reinforces the traditional common law doctrine of privity, holding that a party not in direct contractual relationship with the negligent actor generally cannot recover damages for negligence. It distinguishes between the 'practice of law' and merely acting as a 'scrivener,' which is crucial for determining the scope of liability for non-attorneys. The decision also clarifies that the violation of a criminal statute, even one prohibiting the unauthorized practice of law, does not automatically create a private civil cause of action for damages without explicit legislative provision. This narrow interpretation limits the avenues for recovery for third-party beneficiaries harmed by inadequately prepared legal documents by non-lawyers and emphasizes the necessity of a direct duty for a negligence claim.
