This section contains the nature of the case and procedural background.

Kilburn, testatrix, retained Flaig (D) to prepare her will. Kilburn wanted her estate to pass to her two daughters and that she also intended to marry a Glen Kilburn. Kilburn executed the will on December 21 and then married Glen on December 31st. Kilburn died on July 9th of the next year, and Glen claimed a portion of the estate as a post testamentary spouse. Heyer (P) alleges that D failed to advise Kilburn of the consequences of a post testamentary marriage and negligently failed to include in the will any provision as to the intended marriage. P sued for $50,000 in damages and asked for punitive damages. D demurred because P filed two years after the commission of the negligent act, the drafting of the will. The trial court sustained the demurrer, and the action was dismissed. P appealed.

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