To access this feature, please Log In or Register for your Casebriefs Account.

Add to Library




Gonsalves v. Superior Court

Citation. Gonsalves v. Superior Court, 19 Cal. App. 4th 1366, 24 Cal. Rptr. 2d 52, 93 Cal. Daily Op. Service 8079, 93 Daily Journal DAR 13764 (Cal. App. 1st Dist. Oct. 29, 1993)
Law Students: Don’t know your Studybuddy Pro login? Register here

Brief Fact Summary.

Testator executed a will disinheriting her closest living relatives. Real party in interest claims that testator lacked testamentary capacity and brought suit against the attorney who drafted the will.

Synopsis of Rule of Law.

Attorneys who fail in fully investigate the testamentary capacity of their client will not be found liable to former beneficiaries who are disinherited by the will drawn up by the attorney.


Testator was suffering from terminal colon cancer. She was hospitalized, however doctors testified that she was mentally alert and competent. Testator’s friend, Colleen Ganaye, contacted Petitioner Gonsalves stating that the testator wished to discuss estate planning matters. Gonsalves met with the testator at the hospital. Gonsalves testified that the testator was coherent and expressed a desire to disinherit her closest living relative, her niece Dolores Picardo, and to leave her entire estate to Ms. Ganaye. Theses intentions were stated on a videotape and a will was executed. After being disinherited, Real party in interest alleged fraud and professional negligence against Petitioner attorney. The trial court granted the Petitioner’s motion for summary judgment and the Real party in interest now appeals.


Does an attorney who fails to investigate a client’s testamentary capacity incur liability to a person disinherited by the will drawn by the attorney?

Was the Petitioner entitled to judgment as a matter of law, was there a triable question of fact relevant to a cause of action from fraud against Petitioner?


No. Affirmed. An attorney who fails to investigate the testamentary capacity of his or her client is not liable in tort to a former beneficiary disinherited by the will drawn up by the attorney.

Yes. Affirmed. Petitioner is not alleged to have intentionally prepared a will knowing the testator lacked mental capacity and therefore they were entitled to summary judgment.


The Court notes that some states have extended liability to third party beneficiaries when they are injured by negligence on the part of the attorney drawing up the will. However the Court was unwilling to extend this liability in favor of those who are disinherited by a will of a testator without testamentary capacity. The Court reasons that this would place an undue burden upon attorneys and keep many people from being able to execute a will as attorneys would turn down clients in fear of a lack of testamentary capacity.

Create New Group

Casebriefs is concerned with your security, please complete the following