Hiemstra v. Huston

[1045]

Opinion

LILLIE, J.

In his third amended complaint for negligence and malpractice against a firm of attorneys and a bank, plaintiff, son of the decedent, alleged that on January 24, 1968, Sevigne Hiemstra, decedent’s wife, visited the bank and was introduced to its trust officer, Frederick W. Hearn, a member of defendant law firm, whom she informed that her husband was seriously ill; that defendants knew, or in the exercise of reasonable diligence should have known, that decedent had engaged an attorney to prepare his last will; that on January 31, 1968, without notice to decedent or his attorney, defendants without knowledge of his physical or mental condition, the amount or nature of his properties, or his true dispositive testamentary wishes or intent, family situation or prior wills, gifts, insurance or trusts, negligently and without instructions from him prepared his last will and testament; that on February 2, 1968, Sevigne and defendants went to the hospital and wrongfully induced and prevailed upon decedent to execute the will which designated Sevigne as beneficiary of his entire estate with the exception'of specific bequests to him (plaintiff), blood relatives and a charity; that decedent’s true testamentary intent was to leave Sevigne his home, $20,000 and $400 monthly income from a trust, and to leave him, as remainderman of said trust, one-half of the corpus; that decedent died on February 15, 1968, leaving a $500,000 estate, and the trial of his (plaintiff’s) contest of said will is pending; that as a direct and proximate cause of defendants’ conduct his bequest was materially reduced and he was deprived of the bequest he would have had, all to his damage in the sum of $400,000. Plaintiff also sought exemplary and punitive damages in the sum of $1,500,000.

Demurrer was interposed and sustained; the minute order shows that “[t]he complaint does not plead with particularity required” and the court gave plaintiff 20 days within which to plead. Plaintiff not having amended within the 20-day period, an order of dismissal was entered under the provisions of section 581, subdivision 3, Code of Civil Procedure. Plaintiff appeals from said order.

The trial court properly held that plaintiff failed to state a cause of action. “When a plaintiff is given the opportunity to amend and elects not to do so, the presumption is that he has stated as strong a case as he can. In such a situation, strict construction is required.