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November 1, 2004

Featherson v. Farwell (2004) 123 Cal.App.4th 1022

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Featherson v.   Farwell (2004) 123 Cal.App.4th 1022 The Supreme Court has depublished the Second District decision holding that an attorney’s duty is to the testator-client, not the client’s potential intended beneficiaries.  Therefore, an attorney owes no duty to a potential intended beneficiary to exert pressure on a testator-client to complete an estate plan or to act as an arbiter of the testatorclient’s intent to favor one beneficiary over another.

Gary A.   Farwell worked as Marie Jean Featherson’s probate attorney.   When Marie was hospitalized, she asked Farwell to visit her in the hospital.   While there, Marie allegedly told Farwell she wished to deed her home to Mary, one of her three adult children.   Farwell prepared the deed, which Marie signed; however he waited over six months to record it.   The deed was ultimately recorded after Marie died.

Marie’s son, Charles, commenced a probate action in which he sought an order directing Mary to deed their mother’s property back to the estate.   At trial, Farwell explained he did not record the deed right away because he was being “overly protective of his elderly client.” Mary claimed her mother intended for her to have the property, while Charles and other witnesses asserted Marie intended to sell the property and divide the proceeds equallyamong her beneficiaries.   Some witnesses testified that Marie was unable to communicate during the time she allegedly told Mary she intended to leave the property to her.   The probate court relied on Farwell’s testimony as well as the conflicting testimony regarding Marie’s testamentary intent when it granted Charles’s petition.   The trial court specifically found there was insufficient evidence that Marie had a present intent to convey the property to Mary.

Mary sued Farwell for legal malpractice, asserting his delay in filing the deed caused her damage.   Farwell’s demurrer to her complaint was sustained on the grounds he owed a duty to Marie, not to her daughter, Mary.

The Court of Appeal agreed with the trial court.   It acknowledged case law in which an attorney was held liable to the third-party beneficiary of his or her testator-client’s estate plan, but cautioned that liability to third party beneficiaries is not automatic or absolute.   A duty will not arise where there testator’s intent or capacity is unclear or where imposing a duty of care in favor of a third party beneficiary will impinge on an attorney’s ethical obligations to his or her testator client.   Finally, no duty will arise where imposition of the duty would impose an undue burden on the profession.   The court was troubled by each of these factors.

 Marie’s intent to deed the house to Mary was unclear.   Imposing a duty of care by Farwell to Mary would hinder his duty of loyalty to Marie; an undue burden on the legal profession.   Because Farwell was unsure of Marie’s intent, he could not press Marie to record a deed in favor of Mary without compromising his undivided duty of loyalty to Marie.   Moreover, had Farwell acted as the arbiter of Marie’s intent, he could have become liable to Marie’s other beneficiaries.   Thus, Farwell’s only duty was to Marie.

Comment: The Feathersone decision and its companion, Boranian v.   Clark (2004) 123 Cal.App.4th 1012 [PL Update No.   208] clarify that a probate attorney’s primary duty is to his or her testator client.   When this duty conflicts with a possible duty to potential beneficiaries, the duty to the testator prevails and the attorney owes no duty to the disappointed heirs

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