San Diego Office Obtains Appellate Victory in Estate Planning Legal Malpractice Matter

San Diego, Calif. (September 30, 2022) - San Diego Appellate Partner Corinne Bertsche recently secured an appellate victory on behalf of Lewis Brisbois’ estate planning attorney client in an action involving allegations of legal malpractice, breach of fiduciary duty, negligence, and other claims. The plaintiff in this matter contended that the estate planning attorney breached his duties to her individually and as successor trustee by proceeding to amend her stepfather’s trust to disinherit her, while knowing that her stepfather suffered from dementia. The trial court granted summary judgment in favor of Lewis Brisbois’ client, and the plaintiff appealed.

The appellate court affirmed the lower court’s grant of summary judgment, reasoning that the estate planning attorney did not owe a duty to the plaintiff – either as an intended beneficiary or as successor trustee – to determine her stepfather’s competence in amending his trust. In particular, the court noted that “the ultimate burden of determining testamentary capacity does not fall to the testator’s counsel, but rather to the probate court. [The attorney’s] duty was to his client . . . not the heirs competing for his estate.”

In also finding that the plaintiff’s claims were barred by the applicable statute of limitations, the appellate court rejected the plaintiff’s argument that the statute was tolled until she obtained an order pursuant to which she became successor trustee. Specifically, the plaintiff contended that it was impossible for her to sue before she became trustee. The appellate court, however, determined that the plaintiff had waived the argument of “legal impossibility” by failing to raise it in the trial court. It further observed that even if the plaintiff had raised the issue in the lower court, the claim was without merit because section 340.6 of the Code of Civil Procedure provided the exclusive tolling provisions in actions against attorneys arising from alleged breaches of duties in rendering legal services.

Ms. Bertsche is a member of Lewis Brisbois' Professional Liability Practice and a Certified Specialist in Legal Malpractice with the California Bar Legal Specialization Board. She has over 23 years of experience as a civil litigator focusing on the defense of professionals, including attorneys in legal malpractice and malicious prosecution claims resulting from the representation of clients in a variety of underlying cases, such as dissolution, transactional matters, trusts, estate and probate matters, personal injury, employment law, medical malpractice, and other areas.

View the court's opinion here. For more information on this case, contact Ms. Bertsche directly.