Osornio

Osornio v. Weingarten

Good Law

124 Cal. App. 4th 304·2004 Cal. App. LEXIS 1961·2004 Daily Journal DAR 14027·21 Cal. Rptr. 3d 246·2004 Cal. Daily Op. Serv. 10342

Court of Appeal of CaliforniaNovember 22, 2004No. H027258California12,682 words

Opinion

lead Opinion

Walsh, J.

In Lucas v. Hamm (1961) 56 Cal.2d 583 [ 15 Cal.Rptr. 821 , 364 P.2d 685 ] (Lucas), our Supreme Court rejected the traditional rule that an attorney owed no duty to nonclients. The court held that beneficiaries could sue the attorney whose negligent preparation of a will caused them to lose their testamentary rights, where the attorney’s engagement was intended to benefit the nonclient, and the imposition of liability would not place an undue burden upon the legal profession. (Id. at p. 591.)

Our case is one of first impression involving a potential extension of Lucas . Simona Osornio, a nonclient, was the named executor and sole beneficiary under a will. Because she was care custodian to the testator, a dependent adult, Osornio was a presumptively disqualified donee under Probate Code section 21350, subdivision (a)(6). 1 Accurately anticipating that a probate court would decide that she could not overcome that presumption by clear and convincing proof, Osornio claimed that the bequest to her failed because of the negligence of Saul Weingarten, the attorney who drafted the will on behalf of the testator.

Though Osornio’s allegations are less than clear, her theory of…

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Parties

SIMONA OSORNIO, and
Plaintiff
LAWRENCE A. WEINGARTEN
Defendant

Judges

Walsh

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