APPEAL from a judgment of the Superior Court of Los Angeles County, Irving Shimer, Judge. Affirmed.(Los Angeles County Super. Ct. No. BC395733)
The opinion of the court was delivered by: Epstein, P.J.
CERTIFIED FOR PUBLICATION
In this case, we conclude that a prospective beneficiary of a will cannot maintain a cause of action for legal malpractice against the attorney who drafted the will but did not have it executed before the death of the testator.
FACTUAL AND PROCEDURAL SUMMARY
Appellant Carlyle Hall had known Alexandra Turner since 1962 or 1963. In the late 1990's, Hall formed the belief that Ms. Turner was in need of a conservatorship; she had become increasingly reclusive, sometimes would not answer the telephone or the door, and was not cleaning up when her dog relieved himself inside her condominium. She exhibited signs of dementia.
In December 2001, Hall, through counsel, filed a petition to establish a conservatorship for Ms. Turner. The petition requested that Hall and Judith Chinello, a professional conservator, be appointed co-conservators of Ms. Turner's person, and that he be appointed conservator of her estate. In January 2002, respondent Lawrence Kalfayan was appointed as a probate volunteer panel (PVP) attorney to represent Ms. Turner's interests with respect to the conservatorship petition.
With Hall's assistance, Kalfayan met with Ms. Turner in February 2002. Her condominium was unclean and smelled strongly of dog and she had almost no food in her refrigerator. According to Kalfayan's report to the court, "Mrs. Turner had difficulty remembering the topic of discussion, and during any given conversation, would ask 'what were we talking about?' She could not remember how long she had lived in her present dwelling, or where she lived prior to her current residence. She did not know what a conservatorship proceeding is, and did not know of the upcoming court hearing on February 14, 2002 and she appeared surprised when told of it." Although Ms. Turner expressed opposition to a conservatorship arrangement, "[s]he did express a strong interest in having Carlyle Hall 'be the one to help her,' but only at such time as she needs help." Kalfayan showed Ms. Turner a copy of an attachment to the petition in which she nominated Hall as conservator of the estate, and Hall and Chinello as conservators of her person; she did not recall signing the document and was confused as to its meaning. Ms. Turner confirmed she had a strong and long-lasting friendship with Hall, and stated "more than once during the meeting, that she trusts him completely and wants him to assist her--but only at such time as she needs it." Kalfayan confirmed Ms. Turner's lengthy positive relationship with Hall in interviews with Turner's ex-husband, her accountant, and her niece.
Kalfayan asked Ms. Turner about her family. She mentioned a brother who was deceased, and when asked, recognized the name of her niece, Priscilla Waring. Ms. Turner told Kalfayan that she likes Priscilla but that they had not kept in contact since Ms. Turner moved to California. Asked about having Priscilla help her, Ms. Turner said she would not be comfortable with that, since Priscilla lives far away and they had not been in contact for a long time. Asked about two other individuals, Ms. Turner identified them as her two younger adopted siblings. She said she did not have a close relationship with either one and was not in contact with them. During this meeting, Ms. Turner told Kalfayan she wanted to leave a 17th century Japanese screen to Mr. Hall.
Kalfayan recommended a conservatorship, with Hall as conservator. He identified Ms. Turner's needs as including help paying bills, housekeeping, obtaining groceries, and obtaining medical care when needed. On March 6, 2002, the probate court appointed Hall to be Ms. Turner's conservator. The court discharged PVP attorney Kalfayan, but ordered him to be notified "if the Conservatee is moved to a secured facility or if proceedings concerning the Conservatee's estate planning documents are initiated . . . ."
In 2004, Sean Higgins, who represented Hall as conservator, informed Kalfayan that given Ms. Turner's financial, physical and mental circumstances, Hall wished to proceed with the petition for substituted judgment (PSJ)*fn1 procedure to prepare and obtain court approval of an estate plan for Ms. Turner. Hall arranged for Kalfayan to meet with Ms. Turner in November 2004 to discuss her testamentary intentions. According to Kalfayan's notes from this meeting, Ms. Turner told him Hall should inherit her condominium because she was very fond of him; her niece, Priscilla Waring, should not get anything because Ms. Turner did not like her; no relative should receive any part of her estate; and she did not know who else to give money and articles to so the remainder of the estate should go to Hall and he could decide who to give things to.
According to Sean Higgins, the conservator's attorney, he spoke with Kalfayan in February 2005, and Kalfayan stated he had prepared a draft living trust for Ms. Turner. Kalfayan later asked Higgins to arrange for another meeting with Ms. Turner to review the estate plan. Kalfayan failed to meet with Ms. Turner on the date scheduled in March 2005, apparently the result of a miscommunication with Higgins. One or two other meetings with Ms. Turner were reportedly "of little substance" because Ms. Turner was not feeling well or was not interested in discussing her estate plan.
In April 2005, Kalfayan had his final meeting with Ms. Turner. According to Kalfayan, Ms. Turner "expressed her desire to leave 'more than half' of her estate to Carlyle Hall and 'less than half' of her estate to her niece, Priscilla Waring. The expressions 'more than half' and 'less than half' were Ms. Turner's words." Asked to be more specific about the meaning of those terms, "Ms. Turner said 'a little more' to Mr. Hall and 'a little less' to Ms. Waring. She refused to discuss specifics beyond that, and made it clear that was all she cared to discuss about the matter." Kalfayan told Higgins that this last meeting had been productive, and that he would prepare a draft estate plan giving 60 percent of the estate to Hall and 40 percent of the estate to Ms. Turner's niece.
In late June 2005, Kalfayan notified the conservator's counsel that he had completed a draft of a living trust for Ms. Turner and would be transmitting it to him the next day. On August 10, 2005, Kalfayan sent Higgins the draft trust document, which provided that Hall would receive 55 percent of the estate. Higgins reviewed the draft trust and informed Kalfayan that he believed it would be "easier and more cost-effective for the petition for substituted judgment to seek approval of a will, rather than a trust." In September, Kalfayan agreed to convert the trust into a will.
In mid October 2005, Kalfayan told Higgins he would transmit the draft will within the next week. When this was not received, Higgins sent a letter asking for a status update. On January 31, 2006, Kalfayan sent Higgins the draft will and a cover letter explaining that he had reduced the share of the estate to Hall to 51 percent, which he believed better reflected Ms. Turner's intent. He also indicated he would explain that ...