At least one court has ruled that the Rule Against Perpetuities
is so "perplexing" that failure to apply it does not constitute legal malpractise.
Lucas v. Hamm
, 56 Cal. 2d 583; 364 P.2d 685; 15 Cal. Rptr. 821 (Cal. 1961)
Supreme Court of California
Plaintiffs, who are some of the beneficiaries under the will
of Eugene H. Emmick, deceased, brought this action for damages
against defendant L. S. Hamm, an attorney
at law who had been engaged by the testator
to prepare the will. They have appealed from a judgment of dismissal entered after an order sustaining a general demurrer
to the second amended complaint
without leave to amend.
The allegations of the first and second causes of action are summarized as follows: Defendant agreed with the testator, for a consideration
, to prepare a will and codicils
thereto for him by which plaintiffs were to be designated as beneficiaries of a trust provided for by paragraph Eighth of the will and were to receive 15 per cent of the residue
as specified in that paragraph. Defendant, in violation of instructions and in breach of his contract, negligently
prepared testamentary instruments containing phraseology that was invalid by virtue of section 715.2 and former sections 715.1 and 716 of the Civil Code relating to restraints on alienation and the rule against perpetuities. n1 Paragraph Eighth of these instruments "transmitted" the residual estate in trust
and provided that the "trust shall cease and terminate at 12 o'clock noon on a day five years after the date upon which the order distributing the trust property to the trustee
is made by the Court having jurisdiction over the probation of this will." After the death of the testator the instruments were admitted to probate
. Subsequently defendant, as draftsman of the instruments and as counsel of record for the executor
s, advised plaintiffs in writing that the residual trust provision was invalid and that plaintiffs would be deprived of the entire amount to which they would have been entitled if the provision had been valid unless they made a settlement with the blood relatives of the testator under which plaintiffs would receive a lesser amount than that provided for them by the testator. As the direct and proximate result
of the negligence of defendant and his breach of contract
in preparing the testamentary instruments and the written advice referred to above, plaintiffs were compelled to enter into a settlement under which they received a share of the estate amounting to $ 75,000 less than the sum which they would have received pursuant to testamentary instruments drafted in accordance with the directions of the testator.
* * *
, as we have seen, alleges that defendant drafted the will in such a manner that the trust was invalid because it violated the rules relating to perpetuities and restraints on alienation. These closely akin subjects have long perplexed the courts and the bar. Professor Gray, a leading authority in the field, stated: "There is something in the subject which seems to facilitate error. Perhaps it is because the mode of reasoning is unlike that with which lawyers are most familiar. . . . A long list might be formed of the demonstrable blunders with regard to its questions made by eminent men, blunders which they themselves have been sometimes the first to acknowledge; and there are few lawyers of any practice in drawing wills and settlements who have not at some time either fallen into the net which the Rule spreads for the unwary, or at least shuddered to think how narrowly they have escaped it." (Gray, The Rule Against Perpetuities
(4th ed. 1942) p. xi; see also Leach, Perpetuities Legislation
(1954) 67 Harv.L.Rev. 1349 (describing the rule as a "technicality-ridden legal nightmare" and a "dangerous instrumentality in the hands of most members of the bar").) Of the California law on perpetuities and restraints it has been said that few, if any, areas of the law have been fraught with more confusion or concealed more traps for the unwary draftsman; that members of the bar
, probate courts
, and title insurance
companies make errors in these matters; that the code provisions adopted in 1872 created a situation worse than if the matter had been left to the common law, and that the legislation adopted in 1951 (under which the will involved here was drawn), despite the best of intentions, added further complexities. (See 38 Cal.Jur.2d 443; Coil, Perpetuities and Restraints; A Needed Reform
(1955) 30 State Bar J. 87, 88-90.)
In view of the state of the law relating to perpetuities and restraints on alienation and the nature of the error, if any, assertedly made by defendant in preparing the instrument, it would not be proper to hold that defendant failed to use such skill, prudence, and diligence as lawyers of ordinary skill and capacity commonly exercise. The provision of the will quoted in the complaint, namely, that the trust was to terminate five years after the order of the probate court distributing the property to the trustee, could cause the trust to be invalid only because of the remote possibility that the order of distribution would be delayed for a period longer than a life in being at the creation of the interest plus 16 years (the 21-year statutory period less the five years specified in the will). Although it has been held that a possibility of this type could result in invalidity of a bequest
( Estate of Johnston
, 47 Cal.2d 265, 269-270 (303 P.2d 1); Estate of Campbell
, 28 Cal.App.2d 102, 103 et seq. ( 82 P.2d 22)), the possible occurrence of such a delay was so remote and unlikely that an attorney of ordinary skill acting under the same circumstances might well have "fallen into the net which the Rule spreads for the unwary" and failed to recognize the danger. We need not decide whether the trust provision of the will was actually invalid or whether, as defendant asserts, the complaint fails to allege facts necessary to enable such a determination, n3 because we have concluded that in any event an error of the type relied on by plaintiffs does not show negligence or breach of contract on the part of defendant. It is apparent that plaintiffs have not stated and cannot state causes of action with respect to the first two counts, and the trial court did not abuse its discretion in denying leave to amend as to these counts.
n1 Former section 715.1 of the Civil Code, as it read at the times involved here, provided: "The absolute power of alienation
cannot be suspended, by any limitation or condition whatever, for a period longer than 21 years after some life in being at the creation of the interest and any period of gestation involved in the situation to which the limitation applies. The lives selected to govern the time of suspension must not be so numerous or so situated that evidence of their deaths is likely to be unreasonable difficult to obtain."
Section 715.2 reads as follows: "No interest in real
or personal property
shall be good unless it must vest, if at all, not later than 21 years after some life in being at the creation of the interest and any period of gestation involved in the situation to which the limitation applies. The lives selected to govern the time of vesting must not be so numerous or so situated that evidence of their deaths is likely to be unreasonably difficult to obtain. It is intended by the enactment of this section to make effective in this State the American common-law rule against perpetuities."
Former section 716, as it read at the times involved here, provided: "Every future interest is void in its creation which, by any possibility, may suspend the absolute power of alienation for a longer period than is prescribed in this chapter. Such power of alienation is suspended when there are no persons in being by whom an absolute interest in possession can be conveyed. The period of time during which an interest is destructible pursuant to the uncontrolled volition and for the exclusive personal benefit of the person having such a power of destruction is not to be included in determining the existence of a suspension of the absolute power of alienation or the permissible period for the vesting of an interest within the rule against perpetuities."