70 Cal. 2d 223, 449 P.2d 161, 74 Cal. Rptr. 225 (1969)
In December 1962, Doris Kilburn retained defendant Flaig to prepare her will. She told him that she wished all of her estate to pass to her two daughters and that she intended to marry Glen Kilburn.1 On December 21, 1962, she executed the will he prepared, which left her entire estate to the plaintiffs and named her intended husband as executor but made no other mention of him.2 Subsequently, on December 31, 1962, Doris Kilburn married Glen Kilburn.3
On July 9, 1963, Doris Kilburn died.4 Thereafter the Los Angeles County Superior Court admitted the will to probate as her last will and testament.5 In the probate proceedings, Glen Kilburn claimed a portion of the estate as a post-testamentary spouse under Probate Code section 70.6
The plaintiffs filed a complaint against defendant Flaig alleging that he negligently failed to advise Doris Kilburn of the consequences of a post-testamentary marriage and to include in the will any provision as to the intended marriage. They further alleged that, subsequent to the marriage and up until the date of her death, he negligently failed to advise her of the legal consequences of omitting from the will any provision relative to her husband's claim.7 The complaint sought damages in the amount of $50,000 and punitive damages of $50,000.8
Defendant demurred to the complaint on grounds including the bar of the statute of limitations.9 The trial court sustained the demurrer on the stated basis that the statute of limitations bars the action because plaintiffs filed the complaint later than two years after the commission of the negligent act.10 Following plaintiffs' failure to amend, the court granted defendant's motion to dismiss the action, from which the plaintiffs appealed.11
Whether the statute of limitations commences to run against an intended beneficiary of a will who acquires a right of action against an attorney for malpractice in negligently failing to fulfill the testamentary directions of his client from the date of the negligent drafting of the will or from the date of the testatrix' death?12
A statute of limitations does not commence to run until a cause of action accrues. A cause of action invariably accrues when there is a remedy available.13 An intended testamentary beneficiary acquires no recognized legal rights under a will until the testator dies.14 The continuing nature of the defendant's conduct as alleged prevents the running of the statute of limitations before the testatrix' death. The duty to effectuate the testamentary scheme continued until the testatrix' death when the testatrix' reliance became irrevocable.15
Yes. In December 1962 Doris Kilburn retained defendant Flaig to prepare her will, telling him that she wished all of her estate to pass to her two daughters and that she intended to marry Glen Kilburn.16 The rule requires that the cause of action accrue before the statute begins to run.17 Here the plaintiffs could not bring an action against defendant before the testatrix' death because an intended testamentary beneficiary acquires no recognized legal rights under a will until the testator dies.18
Before her death the testatrix could have altered her will at any time and for any reason.19 The defendant's negligence in failing to advise continued until the date of her death.20 Therefore the statute of limitations did not commence to run until July 9, 1963, when the negligence became irremediable and the impact of the injury occurred.21
The statute of limitations commenced to run on the date of the testatrix' death, and therefore the plaintiffs' action filed within two years of that date was timely and avoids the statutory bar.22
Related opinions on this issue
Justice McComb dissented and would affirm the orders of dismissal for the reasons expressed by Mr. Justice Bishop in the opinion prepared by him for the Court of Appeal in Heyer v. Flaig.23