Crook

The sole question on this appeal is whether the decedent’s natural grandchildren are entitled to share in the estate as pretermitted heirs. For the reasons which follow, we conclude that they are and accordingly reverse the judgment.

Facts

Genevieve Rufran died testate on December 11, 1974, bequeathing her residuary estate to her three surviving children, .respondents herein. The will was duly admitted to probate, and the estate was distributed to the respondents under the terms of the will. Appellants, the surviving children of June R. Smith who predeceased her mother Genevieve, did not receive notice of the probate proceedings.

In November 1977 appellants filed the underlying complaint to establish a constructive trust as pretermitted heirs. Respondents answered and cross-complained against John Soanes, the attorney who prepared the will, alleging malpractice.

At trial, Mr. Soanes’ deposition was admitted into evidence. In his deposition Mr. Soanes related that after June Smith died (in 1972), Genevieve instructed him to redraft her will to exclude her daughter June as a beneficiary, stating that “she didn’t want anything to go to June nor her issue.”

The will, as…