## Facts

- Doris Kilburn retained attorney Joseph Lawrence Flaig in December 1962 to draft a will leaving her entire estate to her two daughters.
- Kilburn told Flaig she intended to marry Glen Kilburn.
- Flaig prepared a will executed on December 21, 1962; it left the estate to the daughters and named Glen Kilburn as executor but did not otherwise address him.
- Kilburn married Glen Kilburn on December 31, 1962.
- Kilburn died on July 9, 1963; the will was admitted to probate.
- Glen Kilburn claimed a share of the estate as a post-testamentary spouse under Probate Code section 70, reducing the daughters’ inheritance.
- The daughters alleged Flaig negligently failed to advise Kilburn about the consequences of marrying after executing the will and negligently failed to include provisions to prevent the spouse’s statutory claim.
- The daughters sought damages for the alleged loss in inheritance.

## Issues

1. When does the statute of limitations begin to run on a malpractice claim brought by intended will beneficiaries against the drafting attorney: at the time of the negligent drafting or at the testator’s death?

## Decision

- The California Supreme Court reversed the judgment sustaining a general demurrer on statute-of-limitations grounds.
- The court held the cause of action accrues at the testator’s death, when the alleged negligence becomes irremediable and the injury to the beneficiaries occurs.
- Because the complaint was filed within two years of the testatrix’s death, it was timely under Code of Civil Procedure section 339(1).
- The case was remanded for further proceedings.

## Legal Principles

- A malpractice claim by intended beneficiaries based on negligent will drafting accrues when the testator dies, not when the will is drafted, because only then does any loss become fixed and legally cognizable.
- A cause of action accrues upon appreciable, nonspeculative injury; before death, the testator can revoke or change the will, so beneficiary harm is contingent.
- An attorney retained to prepare a testamentary instrument owes a duty of due care to intended beneficiaries whose interests the instrument is designed to serve, even without privity.

## Conclusion

The court held that intended beneficiaries’ malpractice claims against a will-drafting attorney accrue at the testator’s death, when the defective testamentary plan can no longer be corrected and the beneficiaries’ loss occurs, making the action timely if filed within the limitations period measured from that date.


Heyer v. Flaig, 449 P.2d 161 (Cal. 1969)