26 Conn. Supp. 378 | Pennsylvania Court of Common Pleas | 1966
This is an action initiated by the administrator of the estate of Lilly Licata (first count) and the children of Lilly Licata (second count). The fundamental allegations of the first count are as follows: (a) The defendant, an attorney at law, was retained by Lilly Licata to draft her last will and testament; (b) the will failed to provide for the required number of witnesses (General Statutes § 45-161); (c) as a result of this deficiency, the Probate Court refused to admit the will into the Probate Court and declared the will invalid; (d) because of the drafter’s negligence, certain assets of the estate have been diverted to persons other than those set forth in the will; (e)
The defendant demurs to the first count on the ground that that count fails to set forth any injuries or damages by the administrator. While it may be true that looking into the future trial it is difficult to see how the estate was damaged to the extent claimed, nevertheless there is an allegation, which of course the demurrer admits, of loss and damage to the decedent’s estate in the amount of $7500. The challenge proffered by the defendant’s demurrer is predicated on the claim that certain elements of alleged damage are improper rather than on the basis that the complaint sets forth a defective cause of action. The demurrer was not the proper means of raising the question of improper elements of damage. Under the allegations of the complaint, the plaintiff administrator was entitled to at least nominal damages, since every invasion of a legal right imports damage. Urban v. Hartford Gas Co., 139 Conn. 301. An attack relating to the elements of damage should be made by motion and not by demurrer. Seidler v. Burns, 84 Conn. 111; Lessard v. Tarca, 20 Conn. Sup. 295; cf. Foran v. Carangelo, 153 Conn. 356.
The contention of the demurrer with reference to the second count is that the beneficiaries are owed no duty by the defendant and that furthermore there was no privity of contract existing between the plaintiff beneficiaries and the defendant. With reference to count two, it might be well
Would the allegations set forth in the complaint permit evidence of a factual situation which would satisfy the requirements of the rule of foreseeability of harm? Noebel v. Housing Authority, 146 Conn. 197. On December 12, 1964, the defendant was consulted by the decedent for the admitted purpose
Does the public policy of the state permit the imposition of a duty under the allegations set forth? There are cogent reasons why it does. A testatrix consults her attorney and is given the assurance that the objects of her affection will receive their just legacies at her death. Neither she nor the beneficiaries, who, in all probability, do not know of the will’s provisions or possibly even of the existence of the will, know of the disappointment that lies ahead — that her purpose will be completely thwarted because of the negligence of the drafter. The technical legal knowledge required in the drafting of a will and the atmosphere of privacy desired by a testatrix with relation to hoth the contents of the will and the safekeeping of the will make it highly improbable that either the testatrix or the beneficiaries would ever be alerted to the almost inevitable results flowing from a defective will. The modus operandi would, in most cases, not lend itself to a detection of the error until it was too late
“[Tjhere is in this State a public policy involved in the establishment of every legally executed last will. This is a policy of ancient origin.” Tator v. Valden, 124 Conn. 96, 100. The purpose of this policy as enunciated by the orders of the General Court was to see that the estate of the testator was not wasted but improved for the best advantage of the children or legatees of the testator. Ibid. While the invalid will cannot be validated by judicial fiat, the allowing of a cause of action under the circumstances set forth in the complaint would seem to be in accord with the policy of the decision of our highest court to give a party who claims to have suffered a wrong at the hands of another every reasonable opportunity to establish his right to redress. Gesualdi v. Connecticut Co., 131 Conn. 622, 631. Sociological impediments and legal considerations which sometimes dictate persuasive reasons as a matter of policy why the claimed cause of action should not be allowed are not present here. Cf. Taylor v. Keefe, 134 Conn. 156, 161.
The defendant contends, nevertheless, that, even admitting the tort, the plaintiffs have no standing to maintain this action because of lack of privity. That the sacrosanct shield of privity which formerly protected the promisor, in an action by a third party, was becoming tarnished was being recognized by jurists in the early part of the century. “The assault upon the citadel of privity is proceeding in these days apace.” Ultramares Corporation v. Touche, 255 N.Y. 170, 180 (1931) (Cardozo, C. J.).
One state, previously embracing the doctrine of privity; Buckley v. Gray, 110 Cal. 339 (1895); has seen fit to abandon its previous position: “The determination whether in a specific case the defendant will be held liable to a third person not in privity is a matter of policy and involves the balancing of various factors, among which are the extent to which the transaction was intended to affect the plaintiff, the foreseeability of harm to him, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant’s conduct and the injury suffered, the moral blame attached to the defendant’s conduct, and the policy of preventing future harm.” Biakanja v. Irving, 49 Cal. 2d 647, 650 (1958). This general principle must be applied in determining whether a beneficiary is entitled to bring an action against an attorney for negligence in drafting a will. Lucas v. Hamm, 56 Cal. 2d 583 (1961); see Ward v. Arnold, 52 Wash. 2d 581 (1958).
The demurrer is overruled in toto.
MacPherson v. Buick Motor Co., 217 N.Y. 382, 389.