## Facts

- A testator retained an attorney to draft a will and codicils creating a residual trust intended to benefit certain named beneficiaries.
- The trust termination clause tied termination to a fixed time period after a probate distribution order, rather than to lives in being.
- After the testator’s death and probate admission of the instruments, the attorney advised that the trust provision was invalid under California law governing restraints on alienation and the Rule Against Perpetuities.
- The intended beneficiaries alleged they were forced to settle with the testator’s blood relatives and received \$75,000 less than they would have received under a valid trust provision.
- The beneficiaries sued the drafting attorney for negligence and breach of contract.
- The trial court sustained a general demurrer to the second amended complaint without leave to amend and entered judgment of dismissal.

## Issues

1. Whether intended will beneficiaries, lacking privity with the drafting attorney, may sue the attorney in tort for negligent preparation of testamentary instruments.
2. Whether a drafting error allegedly creating a Rule Against Perpetuities and restraint-on-alienation violation constitutes actionable malpractice under the ordinary standard of professional care.

## Decision

- The Supreme Court of California affirmed the dismissal after sustaining the demurrer.
- The court held that lack of privity does not bar intended beneficiaries from suing a drafting attorney in tort for negligent will preparation.
- The court disapproved prior authority that treated privity as an absolute bar in this context.
- The court nonetheless held the complaint failed to state actionable negligence because the asserted error involved a highly technical and difficult application of perpetuities and alienation rules, and an attorney of ordinary skill could reasonably have made the same mistake.

## Legal Principles

- A lawyer who prepares a will may owe a duty of ordinary care to intended beneficiaries when the primary purpose of the representation is to provide them a testamentary benefit.
- In determining duty to nonclients in this setting, courts consider factors including intended effect on the plaintiff, foreseeability of harm, certainty of injury, and the closeness of the connection between the conduct and the loss.
- Attorney malpractice requires a showing that the lawyer failed to exercise ordinary skill and care under the circumstances; liability is not established by a mere error in a legally uncertain or exceptionally technical area where competent attorneys might differ or err.

## Conclusion

Intended beneficiaries may maintain a tort action against a will-drafting attorney despite lack of privity, but malpractice liability still requires pleading facts showing the attorney fell below ordinary professional competence; a reasonable mistake in the technical application of perpetuities and alienation rules is not actionable.


Lucas v. Hamm, 56 Cal. 2d 583, 364 P.2d 685 (Cal. 1961)