## Facts

- John Maroevich hired Thomas J. Irving, a notary public (not a lawyer), to prepare a will leaving Maroevich’s entire estate to Vinka Biakanja.
- Irving typed the will in his office, and Maroevich signed it before Irving, who affixed his signature and notarial seal.
- Maroevich later obtained two witness signatures, but the witnesses were not present when Maroevich signed; they did not sign in each other’s presence; and Maroevich did not acknowledge his signature to them.
- Probate was denied because the will lacked proper attestation, and intestate succession governed distribution.
- Biakanja received only one-eighth of the estate and sued Irving for the difference between that amount and what she would have received under a valid will.
- The trial court found Irving undertook to prepare a valid will and negligently failed to secure proper attestation, causing Biakanja’s loss.

## Issues

1. Whether a will preparer who negligently drafts and supervises execution owes a tort duty of care to an intended beneficiary who lacks contractual privity with the preparer.
2. Whether the intended beneficiary may recover economic damages measured by the lost inheritance attributable to the negligent preparation and execution of the will.

## Decision

- The California Supreme Court affirmed the judgment for Biakanja.
- The court held Irving owed Biakanja a duty to exercise due care, even without privity, and was liable for the economic loss proximately caused by his negligent failure to ensure valid execution.
- The court sustained damages equal to the difference between what Biakanja would have taken under a valid will and what she received by intestacy.

## Legal Principles

- A defendant who negligently performs services may owe a duty of care to a noncontracting third party when policy and foreseeability factors support liability.
- Duty to a third party is evaluated by balancing: (1) the extent the transaction was intended to affect the plaintiff, (2) foreseeability of harm, (3) certainty of injury, (4) closeness of connection between conduct and injury, (5) moral blame, and (6) the policy of preventing future harm.
- When the “end and aim” of the undertaking is to benefit a specific third person (such as a named will beneficiary), negligent performance that defeats that objective can support liability despite lack of privity.
- Economic damages are recoverable when the plaintiff’s loss is direct and reasonably certain, and causation is close and non-speculative.

## Conclusion

The court held that a notary who undertakes to prepare and oversee execution of a will must use due care toward the will’s intended beneficiary and can be liable for the beneficiary’s lost inheritance when negligent execution renders the will invalid, even absent contractual privity.


Biakanja v. Irving, 49 Cal. 2d 647, 320 P.2d 16 (Cal. 1958)