February 10, 2016

Attending a Court Hearing

Yolo County Superior Court
To state the obvious, it is always a prudent maneuver to attend a scheduled court hearing. If for whatever reason the litigant or the litigant's attorney cannot attend the hearing, they should notify the other party's attorney, the court, the court clerk, etc. to request a continuance. Absent extraordinary circumstances, opposing counsel will grant a continuance (I've always done so for opposing attorneys). Otherwise, the consequences can be harsh and possibly irreversible.

This brings us to the story of one unfortunate probate litigant. 

Susan Ford Frantzich was the daughter of the late Evelyn I. Ford. Ms. Ford had drafted multiple testamentary documents prior to her passing. The legal issue surrounding her estate was the admissibility of a handwritten codicil. 

(Of note, a codicil is an amendment to a will. To be valid, a handwritten codicil need not be witnessed. Hence, there is invariably a question of its authenticity because nobody saw the decedent actually write the document).   

Susan's petition was objected to by Casey S. Rogers, the grandson of the late Evelyn I. Ford. Casey sought to have the handwritten codicil (not surprisingly) be denied admission to probate. 

The Fresno County Superior Court consolidated the matters and scheduled a hearing for August 20, 2014. Inexplicably, neither Susan nor her attorney attended the hearing. The court then denied Susan's petition and granted Casey's petition.

Susan then appealed her case to the 5th District Court of Appeal. On appeal, the trial court's ruling was affirmed in a unpublished opinion:

"the record we do have reveals an appropriate basis for the probate court to deny Frantzich's petition, as it shows that neither Frantzich nor her attorney appeared at the hearing on her petition. Even if a pre-probate will contest is pending, if a contestant fails to appear at a hearing on a petition to admit a will to probate, and fails to inform the probate court of the status of the contest or request a continuance of the hearing, the probate court may infer that the objection to probate has been resolved or the contestant has elected to treat the matter as a post-probate will contest. (Estate of Horn (1990) 219 Cal.App.3d 67, 72 ["As a general rule a probate court should not be required to act on its own motion to postpone a hearing on admitting a will to probate even when a petition contesting the will is in the probate file."].) Since Frantzich did not appear at the August 20 hearing, either individually or through her attorney, the probate court was well within its authority to deny Frantzich's petition on that basis alone and to admit the will and codicils to probate on Rogers's petition."

In Re Estate of Ford, __ Cal.App.4th __ (2016)