Matthew D. Kanin

An attorney who provides estate planning services (such as drafting revocable living trusts and wills) can be liable not just to the client who engaged him or her, but also to potential beneficiaries. See Heyer v. Flaig (1969) 70 Cal.2d 223, 225-226 (“Heyer”) (“intended beneficiaries of a will who lose their testamentary rights because of failure of the attorney who drew the will to properly fulfill his obligations under his contract with the testator may recover as thirdparty beneficiaries”). After the California Supreme Court decided

Heyer, two recent cases in the Court of Appeal explored the limits on the potential class of plaintiffs to whom the drafting attorney could face liability: Gordon v. Ervin Cohen & Jessup, LLP (2023) 88 Cal.App.5th 543 (“Gordon”), and Grossman v. Wakeman (2024) 104 Cal.App.5th 1014 (“Grossman”). Each of these cases hold that an attorney can be liable only to a third party if the intent of the client was “clear, certain, and undisputed.” Gordon at 549; Grossman at 1024. This formulation compacts a much longer policy analysis into a single question. Gordon at 555-556.

“A lawyer retained to draft a client’s will or trust has a duty to ‘use such skill, prudence, and diligence as members of [the legal] profession commonly possess and exercise.’ (Citation.) If the lawyer fails to do so, the client can sue for legal malpractice. What is more, the lawyer’s duty—and the concomitant right to sue for legal malpractice— can extend to nonclients.” Gordon at 549. In other words, the attorney owes a duty of care to the client; that duty could be asserted by the client during the client’s lifetime, or a successor in interest, thereafter (Cal. Civ. Proc. Code § 366.1), and the attorney may owe an independent duty to beneficiaries.

The potential liability of an estate planner can remain dormant for years. Ordinarily, an action against an attorney for professional negligence must be brought within one year of the date when the plaintiff did, or reasonably should have, discovered the harm. Cal. Civ. Proc. Code. §340.6. However, when the alleged malpractice was in failing to conform the dispositive provisions of a will to a client’s intent, the cause of action does not accrue when the drafting is done. Heyer at 225. It occurs when the transfer becomes irrevocable – which is often not prior to the death of the client. Id. Only then do the beneficiaries suffer “irremediable injury.” Id. The result is that this is a “long-tail liability.”

Professional negligence (whether asserted by the original client, a successor, or an intended beneficiary, as in Heyer) is not the only danger. Depending on the circumstances, a dissatisfied beneficiary or heir could assert other theories, such as interference with economic expectancy (See Beckwith v. Dahl (2012) 205 Cal. App. 4th 1039 (recognizing theoretical existence of the tort); malicious prosecution could come into play (See Steiner v. Eikerling (1986) 181 Cal. App. 3d 639) (liability for presenting forged will to probate). These tort claims create openings for a plaintiff to try inheritance disputes to a jury, even though the legislature has ostensibly abolished jury trials in will and trust contests (Cal. Prob. Code § 825). These alternative theories are not the current focus but share the common feature of being unlikely to arise until after death.

The main focus of Heyer was the accrual of the statute of limitations, not the existence of the tort duty or its contours. Heyer, supra at 225. The trial court had sustained the demurrer on statute of limitations grounds, and duty was not addressed. Id. at 226. Moreover, the theoretical existence of the duty had already been established in recent prior cases, Lucas v. Hamm (1961) 56 Cal.2d 583 (“Lucas”) and Biakanja v. Irving (1958) 49 Cal. 2d 647 (“Biakanja”) which notably involved a non-attorney providing estate planning services, i.e. unauthorized practice of law.) Citing Lucas, the Heyer decision noted that the duty extended only to “persons whose rights and interests are certain and foreseeable.” Heyer at 229.

The question left open by Heyer, but not unanswerable, is when the attorney owes a duty of care to a nonclient heir or beneficiary. The Gordon court provides a superb articulation of the multi-factor analysis, which consist of:

• The extent to which the transaction [between the lawyer and the client] was intended to affect the nonclient plaintiff;

• The foreseeability of harm;

• The certainty of injury;

• The closeness of the connection between the lawyer’s conduct and the nonclient plaintiff‘s injury;

• The “moral blameworthiness” of the lawyer’s conduct (not often applicable outside the Biakanja context);

• The policy of preventing future harm;

• The likelihood that imposing liability on the lawyer to the nonclient plaintiff might interfere with the lawyer’s ethical duties to the client; and

• Burden on the profession (i..e. whether the recognition of the duty would interfere with the attorney’s duty to his client, create conflicting duties, or lead to open-ended liability).

88 Cal.App.5th at 555-556. As a multi-factor policy approach, engaging in this analysis from scratch in every single case would be time-consuming and could potentially lead to inconsistent results. The Grossman and Gordon courts both distill the multi-factor analysis down to a question that is more susceptible to a yes-or-no answer: Was it “clear,” “certain” and “undisputed” that the attorney’s client intended the plaintiff to be a beneficiary? Grossman at 556.

This a “heightened standard” (Id. at 557), and intentionally so: “[M]aking a lawyer liable in malpractice to a nonclient for failing to act in any role beyond the role of implementing the client’s undisputed intent to benefit that nonclient is bad public policy because it places an ‘incentive [on the lawyer] to exert pressure on the client to complete and execute estate planning documents summarily’ (citation) a result that contravenes the lawyer’s overarching duty of loyalty to the client.” Id. at 560 (citing Radovich v. Locke-Paddon (1995) 35 Cal. App.4th 946, 965).

The takeaway from Gordon is that an estate planning attorney’s primary focus should be on carrying out the intentions of the client for whom he has been appointed. If the nonclient plaintiff cannot allege that the client’s intent was unclear, then they may lose at the pleadings stage, as in Gordon, where summary judgment was granted for the defendant law firm and partner attorney. Id. at 556-565. Even if a sufficient allegation of clear instruction is made, an attorney will have a defense on the merits if the evidence is uncontroverted as to what the instructions were, as in Grossman, where the jury verdict against the defendant attorney was reversed on appeal for insufficient evidence. 104 Cal.App.5th at 1023-1025.

The defendant attorney was exculpated in both Grossman and Gordon, with a court of review determining that there was no real question of fact. However, Grossman illustrates that it is possible for a case to proceed to trial, implying the possibility that the finder-of-fact will have to weigh conflicting evidence of client intent.

Estate planning attorneys should familiarize themselves with the specific facts of both of these cases and evaluate their best practices for documenting whether an estate plan delivered to a client for execution does clearly conform to the intent of the client. There are many ways of doing this, and some practitioners already have these steps in place. Those who do not should research options and implement such a system. Doing so will have salutary benefits not just in a hypothetical malpractice action but also in the event that a beneficiary or heir contests a will or trust.

Matthew D. Kanin is of counsel at Greenspoon Marder LLP.