Procedural Posture

Procedural Posture

In this malpractice action against defendant attorney, plaintiff son appealed from the judgment of the Superior Court of Alameda County (California) that sustained the attorney’s demurrer to the complaint.

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Overview

The son’s mother hired the attorney to draft her will. She desired to leave her estate to her son and other children to the exclusion of the children of a deceased son. However, in drafting the will, the attorney failed to exclude the grandchildren. Furthermore, he had the son act as a witness to the will’s execution, thereby voiding all provisions for the son. The son then instituted this action asserting that he had suffered damages as a result of the attorney’s negligence. The trial court sustained a demurrer to the complaint and entered judgment against the son. In affirming that judgment, the court followed the general rule that the attorney was liable only to his client for negligence in carrying out his professional responsibility and that in the absence of fraud or collusion, the attorney was not liable to any third parties that may have been affected by his negligent acts.

Outcome

The court affirmed the judgment sustaining the attorney’s demurrer to the son’s malpractice complaint.

Author: Michle Smith