Firm Can Represent Both Executor and Beneficiary of Will

Baker Manock & Jensen v. Superior Court, 175 Cal. App. 4th 1414, 96 Cal. Rptr. 3d 785 (2009)

Brief Summary
A law firm that drafted a will did not have a conflict of interest in later representing both an executor and a beneficiary of that will against another beneficiary because the former two parties had aligned interests and the latter party was not a client.

Complete Summary
Law firm Baker Manock & Jensen drafted a will for Lillian Salwasser, which created a trust for two of her sons, George and Gary, but omitted her other two sons, Marvin and Denis. Upon Salwasser’s death, Baker Manock represented one son, George, who was a co-executor of the will along with Gary. Salwasser’s will left the rest of her property to her husband, Walter, who died shortly after her will was probated.

The couple’s son Marvin served as the executor of Walter’s will. Denis, the fourth son, died shortly after Walter. Marvin applied for a determination of ownership of his parents’ community property. George argued that Marvin’s application violated the no-contest clause in their mother’s will. In response, Marvin petitioned to disqualify Baker Manock for having conflicts of interest. Marvin alleged three conflicts: (1) between George as a beneficiary and George as an executor; (2) between George as a beneficiary and the other beneficiaries, and (3) between the beneficiaries and Baker Manock as the drafter of the will. The trial court granted Marvin’s petition, and Baker Manock petitioned for a writ of mandate.

The appellate court granted the writ, noting that, because the trial court’s order was based on an error of law, the court’s discretion was not entitled to deference. First, the appellate court held there was no divergence of interest between George as an executor and George as a beneficiary. Second, because George’s opposition to Marvin’s application was for purposes of preserving the assets of Salwasser’s estate, George’s actions were in line with the beneficiaries’ interests. Moreover, even when the executor advocates a certain dispository scheme under the will, such advocacy is in line with the executor’s duty to assist the court in interpretation of the will, the court held. Third, although the drafter of a will may be liable to third party beneficiaries for negligent drafting, the court held there is no attorney-client relationship between the drafter and the beneficiaries, and therefore no possibility of a conflict of interest.

Significance of Opinion
Because probate proceedings often involve many divergent parties and interests, they are potentially fruitful breeding grounds for conflicts. The court dealt with this seemingly complex fact pattern by reducing it to a simple question: did Baker Manock represent clients on two sides of an issue in the same matter? The court found the clear answer to be that Baker Manock did not.