## Facts

- Dorothy Dvorak, age 78, was hospitalized with terminal colon cancer in 1991.
- Linda M. Gonsalves (and her firm) met with Dvorak in the hospital after being contacted by Colleen Ganaye, Dvorak’s close friend.
- Dvorak executed a new will and related estate-planning documents on June 7, 1991, leaving her estate primarily to Ganaye and disinheriting her niece, Dolores F. Picardo.
- Picardo alleged Ganaye destroyed a prior will that would have benefited Picardo and conspired with Gonsalves to procure the new documents while Dvorak lacked testamentary capacity.
- Picardo sued Ganaye and the attorney defendants for fraud and sued the attorney defendants for professional negligence based on an alleged failure to ascertain Dvorak’s capacity.
- The attorney defendants moved for summary judgment, supporting the motion with declarations from Dvorak’s treating surgeon stating Dvorak was mentally alert and competent during the relevant period and that medication did not impair her mental abilities.
- The trial court entered summary judgment for the attorney defendants, and the appellate court reviewed the propriety of that disposition in a writ-related posture.

## Issues

1. Whether a will-drafting attorney owes a tort duty of care to a person disinherited by the will, based solely on an alleged failure to investigate the testator’s testamentary capacity.
2. Whether the evidence and pleadings raised a triable issue of fraud against the will-drafting attorney sufficient to defeat summary judgment.

## Decision

- The court upheld summary judgment for the attorney defendants.
- It held the attorney defendants owed no negligence duty to Picardo, a disinherited former beneficiary, to investigate or confirm testamentary capacity for her protection.
- It held Picardo failed to allege or show facts establishing intentional participation by the attorney in fraud, including knowingly preparing a will for a testator the attorney knew lacked capacity.
- Because the record did not establish a triable issue of material fact on fraud and no duty supported the negligence claim, the attorney defendants were entitled to judgment as a matter of law.

## Legal Principles

- A will-drafting attorney’s limited duty to nonclients may extend to intended beneficiaries harmed by negligent failure to carry out the testator’s expressed intent, but it does not extend to a person disinherited by the challenged instrument based only on alleged capacity defects.
- Imposing a negligence duty to disinherited parties to investigate testamentary capacity would conflict with the attorney’s loyalty to the client and create unacceptable exposure to litigation by disappointed heirs.
- Fraud liability against a drafting attorney requires specific allegations and evidence of intentional wrongdoing (scienter), not merely an asserted failure to investigate or a later dispute over capacity.
- Summary judgment is proper where the nonmoving party cannot produce evidence creating a triable issue on an essential element such as duty (negligence) or intent (fraud).

## Conclusion

The court sustained judgment for the will-drafting attorney defendants, refusing to recognize a negligence duty to a disinherited heir to investigate testamentary capacity and holding that generalized allegations of incapacity, without evidence of the attorney’s knowing participation in fraud, do not defeat summary judgment.


Gonsalves v. Superior Court, 19 Cal. App. 4th 1366, 24 Cal. Rptr. 2d 52 (Cal. Ct. App. 1st Dist. 1993)