Witness Testimony

When a witness testifies, a key consideration when determining the testimony's weight is the testimony's source. Typically witnesses are either interested or disinterested, i.e. they personally benefit from their own testimony or have no interest in the case's outcome. 

A trial court decision pending appeal involved the testimony of a disinterested witness. 

"Macario Aguilar filed in the Tulare County Superior Court, a Probate Code section 850 petition for transfer of real property. Aguilar noted he had contracted with his neighbor, Norma Jean Stephens, to buy her property in Goshen, when she moved from California to Oregon. Aguilar further contended he had complied with all the terms of sale; however, the escrow company handling the sale shut down before escrow officially closed and title to the property was never transferred to him. Meanwhile, Stephens, who had moved to Oregon, had passed away.

Aguilar brought the instant petition to obtain title to the subject property. Stevens's granddaughter, Elizabeth Rose Tyler, objected to Aguilar's petition. The probate court held a contested hearing in the matter. The court ruled in favor of Aguilar. The court found that Aguilar had contracted with Stephens to buy her property and had complied with the contract's terms. Accordingly, the court ordered that title to the property be transferred to Aguilar."

Ms. Stephens moved to Oregon to be closer to her sister, Donna Dennis. Ms. Dennis had no interest in the case's outcome and confirmed the facts of the sale that Mr. Aguilar had testified to during the trial. Ms. Dennis also "testified that all of Stephens's four children had passed away. She said Stephens's grandchildren "never came around at all until they found out money was involved, and now they're coming out of the woodwork." Dennis said that Stephens had told her that her grandchildren did not visit her and did not like her.

The probate court cited Dennis' testimony in their ruling:

"Among other findings, the probate court stated: "In this case, the court finds that the petitioner has [established] that he completed the purchase of the property. He testified he paid the agreed purchase price for the real property." The court added: "Decedent's sister fully supports his version of events. She confirmed her sister wanted to sell the property to `[Aguilar].' Dennis additionally testified that [Stephens] set the price, which price she was willing to agree to after Aguilar paid the mobile home lien. Dennis testified that after Aguilar paid off the lien, the parties entered the agreement for the purchase and sale of the property at the price decedent indicated she was willing to sell for and that Aguilar paid the $20,000."

The probate court continued: "Dennis's testimony was consistent with Aguilar's that the parties had `signed papers,' but that the property was never transferred to Aguilar for unknown reasons. Dennis also confirmed that cognitive decline and undue influence did not impact the sale."

Estate of Stephens, Tulare County Superior Court case no. VPR052163 

Witness Credibility

A contested court proceeding typically involves the testimony of witnesses to the event or events in question. One side will naturally have their witnesses which they will use to bolster their argument. Conversely the other side will have their witnesses too. Each side can cross-examine the other's witnesses to undercut their credibility. Ultimately a decision has to be made as to a witness' credibility, i.e. is the witness' testimony a reliable source of information or not. The person entrusted with the responsibility to determine witness credibility is the trial judge. People v. Jackson (2014) 58 Cal.4th 724, 749. 

A recent unpublished appellate decision involved a trial judge making a determination as to witness credibility.

The decedent had allegedly executed a trust and quitclaim deed. The trust named decedent's girlfriend as the remainder beneficiary. Decedent's daughter challenged the validity of the trust and quitclaim deed.

If the trust and quitclaim deed were deemed valid, then decedent's girlfriend would be a beneficiary of decedent's estate. On the other hand, if the documents were deemed invalid, decedent died intestate and his estate would be distributed to his heirs. Decedent's daughter would be an heir. Decedent's girlfriend would not be an heir. Thus, who inherited from decedent's estate turned on whether or not decedent's purported trust was valid or not.

A primary point of contention was whether or not decedent signed the trust and quitclaim deed. Decedent's girlfriend claimed that decedent had signed the trust and quitclaim deed. A forensic document examiner testified that decedent had not signed the trust and quitclaim deed. While the documents reflected a signature, it was not decedent's signature. The trial judge then made the determination that decedent's girlfriend was not a credible witness while the forensic document examiner was a credible witness.

A footnote from the unpublished appellate opinion provides some context for this determination:

The court noted, "namely, [Jozelle] testified at her deposition that she did not know about the [p]urported [t]rust until after [d]ecedent's death, but at the unlawful detainer hearing she testified that [d]ecedent showed her the [p]urported [t]rust; and although [Jozelle] testified during her deposition that she never had any documents pertaining to the title of the [property], she testified during the trial that she helped [d]ecedent prepare the [q]uitclaim [d]eed and wrote portions of it."

Superior Court of San Diego County, Super. Ct. No. 37-2015-00005361-PR-LA-CTL

Holographic Will

A person should not expect the best results when they haphazardly do anything in life, estate planning is no different.

Estelle Elsa Manwell was a wealthy Californian. According to court documents, she owned real estate in Contra Costa and El Dorado County worth $1,238,848. On March 23, 2011, she executed a holographic will which bequeathed her estate to her 5 living children. For reasons unknown, her will was attested to by 9 witnesses (Author's comment: this is very peculiar, (a) a holographic will need not be witnessed and (b) even a type-written only requires 2 witnesses).  In terms of the real property, the will stated "I do not want any of my property sold outside of my family for a minimum of 20 years." Finally, the will did not nominate an executor nor mention bond. On March 25, 2011, Ms. Manwell passed away. 

There are notable problems with this situation. 

First, the most obvious defect is that there is no trust involved and there decedent owned real estate. Consequently, Manwell's estate must be probated and typically the only "winner" during probate is the attorney because they are handsomely paid. For an estate worth at least a $1M, the attorney can collect a statutory fee of $23,000. Meanwhile, the beneficiaries have to endure a costly and lengthy procedure, namely probate. 

Second, the will did not mention who would have priority to be administrator. Since the children all have equal priority, there existed the potential for conflict because the administrator can be compensated the same amount as the attorney. Consequently, court filings reveal that the children did in fact engage in adversarial proceedings to determine who would be administrator of their mother's estate.

Third, the will called for a lengthy restraint on the alienation of the estate's real property. In other words, the homes could not be sold for a long period of time after the decedent's death. I commonly advise clients to not insert such a clause in their trust because managing property is very expensive. The annual upkeep of a property, e.g. maintenance, property taxes, utilities, etc., is easily thousands of dollars. By essentially hand-cuffing the beneficiaries to the property, they deprive them of liquidity because they are not allowed to sell. I think clients like to keep "the farm in the family" because of the sentimental feelings attached to the property. This is an understandable feeling. Years of familial memories are deeply inter-twined with the property: birthdays, parties, holidays, family meals, etc. Still, the children do not automatically hold firm these same feelings. Hence, I like the notion of providing the children the option to keep or sell the residence. Thereby, the trust would omit a clause about keeping the real estate in the home.

Clearly Ms. Manwell knew that her demise was shortly coming, her will was written only 2 days prior to her death. It is logical to then assume that Ms. Manwell was trying to make the best of her situation. The problem is that sometimes it is too late to fully address all the issues. Despite her will, Ms. Manwell's estate is currently being litigated in probate court and her passing was over 2 years ago. Thus, it is doubtful that Ms. Manwell would be pleased with what that has ensued following her passing. The probate matter is replete with various motions, many of a bizarre nature, and does not appear to be resolved anytime in the foreseeable future.  

Execution of a Witnessed Will

 
When a person executes a witnessed will, certain formalities must be adhered to during the process. The following is a brief overview of the process.

First, the will must be signed by one of the following individuals. Prob C § 6110(b)(1)-(3).

1. By the testator.
2. In the testator’s name by some other person in the testator’s presence and by the testator’s direction.
3. By a conservator pursuant to a court order to make a will under Section 2580.

For reference, the testator is the person who wrote the will and a conservator is somebody who has been court-appointed to oversee the testator because the testator lacks mental capacity. 

Second, the will must be witnessed by at least 2 other witnesses. Prob C § 6110(c). The requirements to be a witness involved a low threshold, "any person generally competent to be a witness may act as a witness to a will." Prob C § 6112(a). 

Frequently the drafting-attorney and an employee will serve as the witnesses. It is highly recommended that the witnesses be disinterested. The reason for this is because of Prob C § 6112(c), which reads in pertinent part "unless there are at least two other subscribing witnesses to the will who are disinterested witnesses, the fact that the will makes a devise to a subscribing witness creates a presumption that the witness procured the devise by duress, menace, fraud, or undue influence." 

For example, if Wilbur was a beneficiary under Theo's will and witnessed it, a rebuttable presumption would arise that Wilbur wrongfully procured this devise. Hence, if Wilbur was to inherit Theo's car, Wilbur would have to prove that there was no wrongdoing on his part for inheriting Theo's car. If Wilbur cannot rebut this presumption, he is entitled to take "such proportion of the devise made to the witness in the will as does not exceed the share of the estate which would be distributed to the witness if the will were not established." Prob C § 6112(d). In other words, Wilbur would be entitled to his share of Theo's estate as an intestate heir, if he qualified.

These 2 witnesses must countersign after witnessing the testator sign or acknowledge their signature in front of them. The relevant statute reads "the will shall be witnessed by being signed, during the testator’s lifetime, by at least two persons each of whom (A) being present at the same time, witnessed either the signing of the will or the testator’s acknowledgment of the signature or of the will and (B) understand that the instrument they sign is the testator’s will." Prob C § 6110(c)(1).

For instance, Thomas types a will one Sunday afternoon and invites his neighbors William and Wendy to serve as witnesses that evening in his kitchen. Thomas just tells them that he needs them to witness a legal document but does not mention that it is a will. Just prior to coming over, Williams decides to make a phone call because he is addicted to his smart phone. Wendy leaves without him and enters Thomas' home to find him in the kitchen. Thinking everything is alright, Thomas signs the will and Wendy signs as a witness. After finishing his phone call, William comes to the kitchen for the first time and signs the will as the second witness. Since William was neither present when Thomas signed his will nor did Thomas acknowledge his signature or will to William upon entering the home, Thomas' will does not comply with the requirements of Prob C § 6110(c) and is arguably invalid.

However, Thomas' will may be found to be valid if "proponent(s) of the will establish by clear and convincing evidence that, at the time the testator signed the will, the testator intended the will to constitute the testator’s will." Prob C § 6110(d). Granted, this is not the ideal method to prove a will but it does provide an avenue for relief should the technical attestation requirements not be met.  

Furthermore, a notary should not notarize the will. While studying to become a notary, my training manual actually said it was okay to notarize a will under certain circumstances. The training manual was and remains wrong on this issue. No competent California attorney will tell a client to have a notary notarize a will because 
(1) it is not required and (2) it is so peculiar such that it will arose suspicion that something dishonest is at play. 
   
Also, California law does not require the initialing of each page for a will. The purpose of this is to prove that the testator has presumably read and approved each page. I have seen some wills have initials on each page. Again, this is not required and personally I find this to be overkill.