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California Appeals Court Dismisses Lawsuit Against Attorney Over Unsigned Will

It’s never a good idea to wait until the last minute to complete an important task. This is especially true when talking about making (or revising) your estate plan. There is nothing you can do about your will or trust after you’re dead, and if you are contemplating a new or amended estate plan, it is imperative you speak right away with an experienced California estate planning attorney.

Don’t Blame the Estate Planning Attorney

Recently, the California Court of Appeals dealt with a lawsuit arising from the failure of a dying woman to complete revisions to her estate plan before her death. This case is not a binding statement of California law, but it provides a useful illustration of the perils of waiting until it is too late. In this case, the deceased woman’s relatives attempted, unsuccessfully, to blame her attorney for the failure.

Helen Peterson died in December 2011. Years earlier, she signed a will leaving her entire estate to the First Church of Christ Scientist in Boston. During the last decade of her life, Peterson became close with her nephew, Mike Stipic, Jr., and her second cousin, Jim Franicevich, who helped care for her.

The week before her death, Peterson asked her estate-planning attorney, Robert Peterson (no relation), and her accountant, Jim Hopfer, to amend her will. Peterson now only wanted to leave half of her estate to the church, with the other half divided between Stipic and Franicevich. She also wanted the two men to serve as co-executors of her estate.

Stipic called Robert Peterson on the morning of December 7th, 2011, for an update on the status of his aunt’s will. Peterson said the documents would be ready in about a week. Unfortunately, that would be too late. Helen Peterson died later that day.

Since Helen Peterson’s existing will remained in force, the First Church of Christ Scientist received the entire estate. Robert Peterson suggested Stipic and Franicevich ask the church to honor Helen Peterson’s intent and share the estate with them. The church declined the request.
Deprived of their promised inheritance, Stipic and Franicevich turned against Robert Peterson. They sued him for malpractice, claiming his “inaction and conduct” caused them monetary loss. Peterson filed an objection to the complaint, which the trial court sustained. The Court of Appeals agreed with the trial court that the case should be dismissed.

Obviously, it’s hard to sustain a malpractice claim when Robert Peterson never entered into an attorney-client relationship with neither Stipic nor Franicevich. The Court of Appeals noted there are cases in which an attorney has been held liable for drafting errors that resulted in the exclusion of an intended heir, but this assumes the person making the will has clearly manifested his or her intentions in writing.

That was not the case here. While Helen Peterson had instructed her attorney to prepare a new will, she might well have changed her mind before signing a final document. The appeals court explained that such “preliminary direction” from a client to an attorney does not constitute a clear expression of intent. Unfortunately, Helen Peterson died before expressing her intent in writing to alter or revoke her prior will.

If you are considering creating a will, or making changes to your existing estate plan, it is imperative that you speak to an experienced estate planning attorney immediately. Contact the Law Office of Scott C. Soady in San Diego to discover and begin the best course of action.

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