Reset A A Font size: Print

Court of Appeal, First District, Division 4, California.

Linda M. GONSALVES et al., Petitioners, v. ALAMEDA COUNTY SUPERIOR COURT, Respondent; Dolores PICARDO, Real Party in Interest.

No. A062607.

Decided: October 29, 1993

Gonsalves & Kozachenko, Linda M. Gonsalves, Hamida Jackson–Little, Fremont, for petitioners. Raymond H. Levy, Inc., Raymond H. Levy, Michael J. Levy, San Francisco, for real party in interest.

In this writ proceeding, we consider the duty of an attorney to determine the testamentary capacity of a client seeking to make a will.


On June 1, 1992, Dolores F. Picardo, real party herein, filed a complaint arising from the fact that she had been disinherited as beneficiary of the estate of her aunt, Dorothy Dvorak.   The estate was left to Colleen Ganaye through a trust and will drafted by attorney Linda M. Gonsalves and executed by Dvorak on June 7, 1991.   The first two causes of action are the only ones relevant to the instant petition.   In the first cause of action for fraud against Ganaye and Linda Gonsalves, Paul Kozachenko and the law firm of Gonsalves & Kozachenko, real party alleged as follows:  Ganaye destroyed an earlier will giving all Dvorak's property to real party and took it upon herself to make arrangements with Gonsalves to prepare a new will for Dvorak knowing that Dvorak was dying and lacked testamentary capacity.1  In the second cause of action for professional negligence against petitioners alone, real party alleged that with a reasonable amount of diligence, petitioners would have known of the lack of testamentary capacity of the deceased and should have refused to permit the execution of the documents.   Gonsalves either deliberately conspired with Ganaye or negligently acted to defeat real party's right of inheritance.

On May 7, 1993, petitioners filed a motion for summary judgment.   They argued (1) that Gonsalves had no reason to doubt Dvorak's testamentary capacity, (2) that they owed no duty to plaintiff and thus could not be liable for professional negligence, and (3) that the claim for fraud must fail.   In support of the motion, petitioners filed the declaration of Dr. Smith, the surgeon who had operated on Dvorak for the colon cancer from which Dvorak died in July of 1991.   Dr. Smith stated that he treated, Dvorak, a 78 year-old woman, from May 1991 and last saw her in the office on July 8, 1991.  “[D]uring this entire time, she was mentally alert and fully mentally competent.   She required some pain medication and antinausea medication, but these did not interfere with her mental abilities whatsoever.”   In a later declaration, Dr. Smith stated he saw Dvorak twice a day between May 22, 1991, and June 7, 1991.   Immediately after surgery she suffered from confusion, disorientation and may have experienced hallucinations as a result of pain medication which commonly has that effect.   He examined her on June 7, 1991, the day she was discharged and she was “alert, articulate, coherent, capable of understanding and following instructions, and was in full possession of her mental faculties.”

Notations in hospital records as to Dvorak's condition read:  “June 3, 1991 10:50 a.m.:  [Discharge Planning Note:]  ‘I spoke with patient this am—she was independent and lived alone prior to admission.   She stated she would be going to a friend's home and the friend would assist her.   We discussed the ostomy․’  ‘June 4, 1991 4:00 p.m.:  [Social Services note:  Routine visit by oncology social worker.]   Patient is in excellent spirits and expresses pleasant surprise at ‘easy’ procedures for colostomy management.   She feels well trained and capable despite earlier apprehension.   She says she is coping well emotionally, relying on her strong religious faith and pleasant memories to dismiss sadness.   She looks forward to working with her younger friend, who has become like a daughter or granddaughter to her.'  ‘June 7, 1991:  [Condition Upon Discharge:]  Awake, alert, ․ ostomy instructions given ․ denies pain.’ ”

In a declaration, petitioner Gonsalves stated that on June 4, 1991, she received a telephone call from Colleen Ganaye, a stranger to her.   Ms. Ganaye told her that her friend, Dorothy Dvorak, was hospitalized with terminal cancer and had requested Ms. Ganaye to assist her in setting up an appointment with an attorney to discuss estate planning matters.   Ms. Gonsalves telephoned Dvorak in the hospital and set up an appointment for June 5.   She met alone with her for about 45 minutes.   She was sitting up in her hospital bed and appeared healthy, well-rested and alert.   She was coherent and articulate throughout the meeting.   She stated that she wanted Ganaye to handle her affairs upon her incapacity and she wanted her to inherit her estate.   She told her that her closest living relatives were her niece, Dolores Picardo, and a nephew.   She stated that she did not want to leave anything to Ms. Picardo.   She wanted to include disinheritance language in her estate planning documents because she felt that Ms. Picardo might try to contest the will.   Gonsalves asked Dvorak if she wished to state her intentions on video tape and Dvorak thought that would be helpful.   In accordance with the instructions, Gonsalves prepared a durable power of attorney, a living trust and a pour-over will.   The documents were executed on June 7, 1991.   The event took place at Ganaye's home while Ganaye was at work.   The only persons present were Kristine Rosales, Mary Caldwell, Dvorak and Gonsalves.

Caldwell confirmed in deposition that Dvorak appeared “bright, cheerful, talkative, alert, and responsive.”   She also mentioned that Colleen Ganaye had befriended Dvorak many years before and that she had visited Ganaye's house on numerous occasions when Dvorak was present.

Rosales also confirmed that Dvorak was in good spirits.   Because of the video taping, “Dorothy kind of joked about does my hair look okay, am I going to look okay when somebody looks at this.   I want to look nice.”

The video tape shows Gonzales asking Dvorak if she intends to leave her property to Ganaye and not to Picardo and if she understands the terms of her will.   Dvorak replies affirmatively with an alert, responsive and calm demeanor.

Declarations by real party, real party's daughter, and Carol Dvorak, stepdaughter-in-law of the deceased emphasized the close relationship of Dvorak and real party, Dvorak's frailties and confusion.   Dr. David Berke, personal physician for Dvorak since the mid–1970's filed a declaration stating that “Dorothy Dvorak has for many years been subject to hallucinations, and during the last year of her life was increasingly depressed.”   He saw her at an unspecified date at the hospital and observed that she was totally confused and would not be in a position to execute a last will and testament.   Based upon his knowledge of Dvorak “for many years, and knowing her condition at and about the time involved, she was subject and could be subjected to undue influence without recognizing the consequences of her act.”

Respondent court denied the motion for summary judgment and petitioners filed the instant petition.   We issued an alternative writ on September 9, 1993.   On September 30, 1993, respondent court granted the motion for summary judgment and entered judgment in favor of petitioners.   Although the instant petition is moot, at the request of real party in interest, we will resolve the issues presented on the merits since real party's attorney states that it is his intention to seek appellate review of the order granting summary judgment.2


Does an attorney who fails to investigate a client's testamentary capacity incur liability to a person disinherited by the will drawn by the attorney?

 Since the case of Lucas v. Hamm, it has been settled in California that intended beneficiaries of a will who lose their testamentary rights because of failure of the attorney who drew the will to properly fulfill that attorney's obligations under his or her contract with the testator may recover damages as third party beneficiaries and also on a tort liability theory for breach of duty owed directly to the beneficiaries.  (Lucas v. Hamm (1961) 56 Cal.2d 583, 588, 15 Cal.Rptr. 821, 364 P.2d 685;  Heyer v. Flaig (1969) 70 Cal.2d 223, 226, 74 Cal.Rptr. 225, 449 P.2d 161 disapproved on another point in Laird v. Blacker (1992) 2 Cal.4th 606, 617, 7 Cal.Rptr.2d 550, 828 P.2d 691;  Bucquet v. Livingston (1976) 57 Cal.App.3d 914, 921, 129 Cal.Rptr. 514.)

In determining whether to extend liability to such third party beneficiaries, the Supreme Court considered whether the imposition of such liability “would impose an undue burden on the profession” and announced:  “We are of the view that the extension of his liability to beneficiaries injured by a negligently drawn will does not place an undue burden on the profession, particularly when we take into consideration that a contrary conclusion would cause the innocent beneficiary to bear the loss.”  (Lucas v. Hamm, supra, 56 Cal.2d at p. 589, 15 Cal.Rptr. 821, 364 P.2d 685.)

The same considerations lead to the conclusion that attorney liability should not be extended in favor of those who are disinherited by the will of a testator without testamentary capacity.   First, the disinherited beneficiary in this situation, unlike the beneficiary in the Lucas v. Hamm situation, has a remedy since he or she may contest the probate on the ground of lack of testamentary capacity.   Second, such an extension of Lucas v. Hamm would be an intolerable burden to place upon attorneys.   It would put an attorney in the position of potential liability to either the beneficiary disinherited if he or she draws the will or the potential beneficiary if he or she refuses to draw the will.   Third, the potential for such liability would unjustifiably deny many persons the opportunity to make their wills.   Many factors which might suggest a lack of testamentary capacity to some attorneys as well as to those unfamiliar with the law in this area do not denote lack of such capacity.   As the court said in Estate of Selb (1948) 84 Cal.App.2d 46, 49, 190 P.2d 277:  “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, absent-mindedness and mental confusion do not furnish grounds for holding that a testator lacked testamentary capacity.”   Even delusions or hallucinations do not show incompetency if not related to the testamentary act.  (Estate of Perkins (1925) 195 Cal. 699, 704, 235 P. 45.) (See also Estate of Frischi (1963) 60 Cal.2d 367, 372, 33 Cal.Rptr. 264, 384 P.2d 656, decedent in hospital with fatal cancer;  physically weak, disturbed and under heavy dosage of drugs determined to have testamentary capacity.)

The facts of the instant case illustrate the potential problem for the dying testator and his attorney.   The declarations filed in this case suggest that had Gonsalves consulted both Dr. Smith and Dr. Berke for an opinion on testamentary capacity, she might have received diametrically opposed opinions.   Faced with potential liability to Picardo whom she knew would be disinherited, Gonsalves might have declined to draw the will despite her own view that Dvorak had the requisite competence.

 The primary duty of the attorney is to the client and is fulfilled if the attorney, convinced of testamentary capacity by his or her own observations and experience with the client, draws the will as requested.   We conclude that an attorney who fails to investigate the testamentary capacity of his or her client is not liable in tort to a former beneficiary disinherited by the will drawn by the attorney.   The attorney obviously is not liable in contract since the disinherited person is not a third party beneficiary of the contract between attorney and testatrix.

Was there a triable question of fact relevant to a cause of action for fraud against Gonsalves?

 The disputed factual issues articulated in the order denying summary judgment as relevant to a cause of action for fraud against Gonsalves were:  (1) whether or not the deceased had testamentary capacity and (2) whether the deceased was given an opportunity to review the documents presented to her for signing.   Even if Dvorak did not have testamentary capacity, such a fact, in itself, would not furnish a basis for a cause of action for fraud against Gonsalves.   Gonsalves was not alleged to have intentionally prepared a will knowing that the testatrix lacked testamentary capacity.   Similarly the fact, if true, that Dvorak was not given an opportunity to review the documents presented for signing is not the basis for a cause of action for fraud.   It is undisputed that Dvorak intended to disinherit real party and leave her estate to Ganaye.   The dispute is over whether she had the testamentary capacity to do so.

We agree with petitioners that, as a matter of law, they were entitled to summary judgment.   Since respondent court has now granted summary judgment to petitioners, we discharge the alternative writ and deny the petition as moot.


1.   The first cause of action for fraud is also against Kristine F. Rosales who notarized the trust agreement and a grant deed by which Dvorak transferred property into the trust and against Mary E. Caldwell who witnessed the trust and will.   It seeks imposition of a constructive trust and punitive damages against Ganaye.

2.   Real party has the right to an immediate appeal from the judgment granting summary judgment in favor of petitioners.  (See 9 Witkin, Cal. Procedure (3d ed. 1985) Appeal, § 76.)   Real party, in asking this court to decide the issue in this writ proceeding, has not requested oral argument.

PERLEY, Associate Justice.

ANDERSON, P.J., and POCHÉ, J., concur.