Waiver of Objection

In law, phrases can be similar but nonetheless distinct. For example, in the probate context, Letters of Administration can be issued as well as Letters of Special Administration. The former typically permits a person to administer an estate with general powers. The latter permits a person to administer an estate with limited powers. Therefore both grant the ability to administer an estate albeit to a different degree.

The uniqueness of legal terminology can ensnare the unsuspecting litigant. A recent unpublished appellate opinion involved a litigant who erroneously thought they had properly objected when in fact they had not.   

"Sister filed an ex parte application seeking suspension of Brother's trustee powers in February 2024, though the application itself is not in the record. Brother opposed the ex parte, arguing his parents did not want the house to be sold, that he needed to live in the home to care for the parties' disabled sister (not a party to this case),^[2] that the underlying settlement should be set aside, that Sister violated the settlement agreement, and that there was no emergency justifying ex parte relief. The trial court granted the application and suspended Brother's cotrustee powers.

At a May 2024 initial hearing on the petition, the trial court noted no written objections to the petition had yet been filed and warned Brother that 'if he fail[ed] to serve and file a timely objection or response by 08/01/2024, the Court may deem such objection or response waived.' The court continued the hearing for nearly three months.

At the August 2024 hearing, the trial court found Brother failed to file a written objection. The court told the parties it had previously set a deadline for written objections and had not received a written objection. Brother asked for a continuance, explaining he believed he had filed objections in the body of a separate petition he had previously filed against Sister, describing it as "excusable neglect" on his part. He denied understanding that there was a deadline for the filing of written objections. The trial court then placed Brother under oath and asked him why he did not file timely written objections. Brother responded that he was overwhelmed by his various responsibilities relating to the trust and the parties' disabled sister. The trial court found there was no mistake, inadvertence, surprise, or excusable neglect, and deemed the objections waived.

Accordingly, the trial court granted Sister's petition, removed Brother as cotrustee of the trust, permitted Sister to evict any remaining occupants of the parents' former home, and awarded attorney fees to Sister in an amount to be determined." 

On appeal, the appellate court upheld the trial court's ruling finding that objecting to an ex parte application does not constitute an objection to the underlying petition. 

Brown v. Mansueto, San Diego County Superior Court case no. 37-2008-00152252

Adoptive Child and Probate

Probate Code §6451 provides that

(a) An adoption severs the relationship of parent and child between an adopted person and a natural parent of the adopted person unless both of the following requirements are satisfied:

(1) The natural parent and the adopted person lived together at any time as parent and child, or the natural parent was married to or cohabiting with the other natural parent at the time the person was conceived and died before the person’s birth.

(2) The adoption was by the spouse of either of the natural parents or after the death of either of the natural parents.

In the case of inheritance, adoption can play the deciding factor if an individual inherits from an estate or not. A recent unpublished appellate decision was centered on the adoption of a decedent in 1923 and the inheritance rights of a niece.

"Decedent was born in Florida in September 1923. His mother died when he was about eight days old. Around November 1923, Decedent was adopted by J.B. Morrow and Edna Morrow.  Decedent died intestate in California in 2017. He was survived by his spouse who subsequently passed away in 2020. In 2021, Respondent Debbra Tauber was appointed administrator of Decedent's estate."

"In 2023, Pitts filed a petition to determine her entitlement to a share of Decedent's estate (§ 11700). She argued she was entitled to inherit from Decedent because she was his biological niece, the daughter of his biological sister.  Tauber filed an objection to the petition. According to Tauber, Pitts was not an intestate heir entitled to distribution because Decedent had been adopted. Tauber noted adoption severs a parent-child relationship pursuant to section 6451, subdivision (a)." 

"As noted ante, to inherit through a natural parent, Pitts must satisfy section 6451, subdivision (a), which includes the requirement that Decedent and his natural parent "lived together at any time as parent and child." (§ 6451, subd. (a)(1).) The trial court did not err by finding insufficient evidence to establish Decedent and his natural parent lived together at any time as parent and child. Pitts relies on circumstantial evidence—i.e., records showing a shared residence and inference that Decedent was born at home—to show Decedent and his mother must have lived together. But the inference is speculative. Decedent's mother died eight days after his birth, and he was adopted when he was about two months old. At most, Pitts' documents establish the mother resided at the listed address. They do not establish Decedent and the mother lived together as parent and child within the meaning of section 6451, subdivision (a)(1). Nor does the brief period (eight days) compel such a finding as a matter of law. On this record, the court could reasonably conclude Pitts did not meet her burden."

Estate of Morrow, Orange County Superior Court case no. 30-2020-01172277 

Malicious Prosecution of a Probate Action

Usually when a party loses a case, they do not compound their loss by continuing to litigate. In other words, "if you find yourself in a hole, stop digging." Alas one litigant in a recent unpublished appellate option did not heed this adage.

"This case stems from a family dispute over the probate of the estate of Mohammed Hussain (decedent). After decedent passed away, one of his sons, Asif "Robert" Hussain (Asif) took a document purporting to be decedent's will and instructed one of his friends to sign and backdate the witness attestation clause so he could probate the will. The will named Asif the executor of decedent's estate and distributed most of the estate to Asif. Decedent's other heirs contested Asif's petition to probate the will. Asif subsequently conceded that the will was invalid and abandoned his probate petition.  

Decedent's other heirs then filed suit against Asif for malicious prosecution of the probate action. In response, Asif filed a special motion to strike the malicious prosecution claim under our anti-SLAPP statute. (Code Civ. Proc., § 425.16.) The trial court denied the motion. Asif now appeals, arguing the plaintiffs failed to provide sufficient evidence that he acted without probable cause and with malice in filing the probate petition. We disagree and affirm the trial court's ruling." 

The declaration submitted by the aggrieved litigant:

"Asif submitted a declaration in support of his motion attesting to the following facts. In 2022, decedent told Asif that he intended to distribute his home in Granada Hills to Asif and Seletskiy, with 60 percent going to Asif and the remainder to Seletskiy. Decedent also indicated that he prepared a will and instructed Asif to sign it. In December 2022, decedent gave Asif the combination to a safe and told him to retrieve the documents stored there in the event of his death. After decedent's passing, Asif opened the safe and retrieved a will. He then took that will to a non-attorney "probate specialist," Cheryl Templeton (Templeton). Templeton told him that "in order to submit the [w]ill to [p]robate it needed to be fully signed and dated by two witnesses who knew [decedent]."  

Having been told that the will was defective because it was not signed by two witnesses, Asif concluded that "all [he] needed to do to submit the [w]ill to [p]robate was to get another signature on the [w]ill from a person who knew [decedent]." He went to Gorgone and asked her to sign the witness attestation clause and backdate her signature to July 2022. He then took the signed will to a probate attorney and directed his new counsel to file the probate petition. At some unspecified time after filing the petition, Asif "became aware" that Gorgone's signature was invalid because she did not witness decedent sign the will as she had attested to. Once he learned this information, he instructed his counsel to dismiss the probate petition. Asif claims he did not intend to deceive any of the plaintiffs and would not have submitted the will to probate court if he had known that Gorgone's signature was defective."

Hussain et al. v. Hussain et al., Los Angeles County Superior Court case no. 24VECV04712.

Influence or Undue Influence?

One method to invalidate a revocable transfer on death deed (TOD) is by proving undue influence. Obviously the beneficiary of a TOD will have some influence over the drafter of the TOD. For example, in the case of a child and parent, the child may converse with the parent, care for the parent, buy groceries for the parent, pay bills for the parent, take the dog out for a walk, etc. These interactions between the child and parent certainly give the child influence with the parent. Still, the threshold question is whether the influence is undue or not. If undue influence, the free will of the parent is overcome by the influence of the child. 

A recent unpublished appellate decision articulated the difference between "influence" and "undue influence."

"I find that Ms. Vosburgh influenced Ms. Fries, gave her information regarding, perhaps, Mr. Gribbon's misdeeds from the past; gave Ms. Fries information about the check writing that, again, and I'm not taking this for the truth, but this is information that Ms. Fries received, whether she believed it or not or whether it is true or not, that is not for me to determine, but this is the information she had.      

And I do believe that Ms. Vosburgh informed Ms. Fries of the check writing, that it was Mr. Gribbon who wrote himself checks; that it was Mr. Gribbon who — I'm trying to choose my words regarding the bird. I know there was some argument whether it was stolen, sold, boarded, all of those things, but taken away from Ms. Fries, and she was not happy about that. She did not consent to that.      

And, also, regarding her apartment being emptied when she came home, again, I'm not accepting those as, necessarily, the truth, but . . . that [information] was otherwise provided to Ms. Fries.      

And based on [that] information, and I even thought about this, essentially, whether they be true, whether they be disinformation, misinformation, it was information that she had, and the question is, having [that] information, whether it be true or not, whether it be mis-, dis-, or lies, when she had [the] information, was she of her free mind, her own volition? Did she voluntarily, knowingly, intelligently make a decision to, nonetheless, give both properties to Ms. Vosburgh? And based on the evidence that I have, that Ms. Fries was actually upset with Mr. Gribbon, whether it be the bird, whether it be because of the checks, the emptied out apartment, that she was upset with Mr. Gribbon, she did not want to communicate with Mr. Gribbon, she did not want to — I think one of the . . . statements that was given was she did not want anything to do with Mr. Gribbon, again, whether that be based on truth, misinformation, that's how she felt.      

And based on the feeling, based on the belief, then she did execute a transfer of that deed on her own free will, voluntarily, intelligently, informed, or without duress or coercion, and I do believe that it was. So based on those, I do feel that the Petitioner, Mr. Gribbon, has failed to meet his burden to show that Ms. Fries otherwise executed the [TODs] September 2nd, 2019, that she was under undue influence.      

I believe she was influenced, but whether it was "undue," I do not find that it was."

Gribbon v. Vosburgh, Riverside County Superior Court case no. PRRI2100639; PRRI2200180 

Signing a Will

In order to be validly executed, a will needs to be signed by the testator, by some other person in the testator’s presence and by the testator’s direction or the testator's conservator pursuant to a court order. Probate Code §6110(b). Typically the signatory on the will is that of the testator. In a will contest, the genuineness of the testator's signature can occasionally be at issue. A recent unpublished appellate decision touched upon the testator's alleged execution of her will.

"After decedent Diane Carreira died on August 26, 2022, appellant Emily Mendoza petitioned to admit to probate a document entitled "Power of Attorney and Last Will and Testament of Diane Carreira," dated August 23, 2022. The probate court determined that the will was not valid because Carreira had not signed it. The court found in the alternative that, even if Carreira had properly executed the document, it was still invalid under the conclusive presumption of fraud or undue influence that applies when the drafter of a will is also a beneficiary." 

Typically a handwriting expert is retained to opine as to whether or not the testator in fact signed the will. This case was no different.

"Mendoza testified that she drafted the will during a phone call with Carreira on the Monday before Carreira died. Carreira "pretty much" told her what to put in the will, although Mendoza "added details," including names and terminology. Mendoza testified that she took the document to Carreira, who signed it while inclined in bed. Mendoza said she was familiar with Carreira's signature and recognized the signature on the will as being hers." 

"Substantial evidence supports the probate court's finding that Carreira did not sign the will that Mendoza proffered. Lilinoe-Davis's expert witness testified that Carreira's signature was not genuine based on several characteristics distinguishing the signature on the will from other known exemplars of Carreira's signature. These distinguishing characteristics were not explained by Carreira's illness or the fact that she purportedly signed the will in bed. Lilinoe-Davis also provided her own lay opinion that the signature on the will did not resemble Carreira's signature. The testimony of these two witnesses provided substantial evidence that the signature was not genuine. Mendoza emphasizes her own testimony that she saw Carreira sign the will, but it was within the probate court's purview to weigh the conflicting evidence. (Estate of Clark (1949) 93 Cal.App.2d 110, 119 [handwriting expert testimony provided substantial evidence to reject will, despite contrary testimony of other witnesses]; Estate of Kisling (1945) 68 Cal.App.2d 163, 166-167 [handwriting expert testimony and court's own examination of signature were substantial evidence to overcome contrary testimony of two witnesses].)"

Estate of Diane Carreira, Siskiyou County Superior Court case no. SCCV-CVPB-2022-973 

Omitted Spouse

The marital status of a person occasionally changes over time. For example, a person could be married one year, divorced the next year and then re-marry the following year. With the change in marital status, there are estate planning implications that may arise. One such issue is the beneficial interest, if any, of a subsequent spouse in the other spouse's estate. The relevant law provides that "if a decedent fails to provide in a testamentary instrument for the decedent’s surviving spouse who married the decedent after the execution of all of the decedent’s testamentary instruments, the omitted spouse shall receive a share in the decedent’s estate" per CA law. Probate Code §21610. However, a surviving spouse does not automatically qualify as an omitted spouse.    

A recent unpublished appellate opinion centered on a surviving spouse's claim to be an omitted spouse.

Oswaldo Herrador, a widower, married Rose Herrador in 2015. Oswaldo had executed a marital trust with his prior spouse, Gloria Herrador, in 2010. The trust was funded with a fourplex in Daly City, CA and a residence in San Bruno, CA. Gloria passed away in 2010 and Oswaldo passed away in 2022. In 2023, Rose filed a petition requesting her share of Oswaldo’s estate as an omitted spouse. The petition alleged that Oswaldo “neglected to create and execute either a Trust or a Will to provide for Rose. Oswaldo also failed to provide for Rose otherwise, commensurate with her spousal share," by naming her as beneficiary "on any account or insurance policy, or granting her an interest in title to either of his two real properties located in San Mateo County."  

Oswaldo’s children filed an objection which “disputed that Rose was an omitted spouse since Oswaldo provided for her in a separate testamentary instrument, his "Last Will and Testament," which governed his assets in El Salvador and was subject to probate in El Salvador (El Salvador Will). It also alleged, inter alia, that Rose was not an omitted spouse because Oswaldo designated her as the sole beneficiary of his Wells Fargo Bank account."

“On April 15, 2024, the trial court held a hearing on the motion for summary adjudication. Afterward, the trial court granted the motion, ruling, Petitioner is not an omitted spouse having been named as a beneficiary under decedent Oswaldo Herrador's testamentary instrument, namely his last will and testament governing his assets in El Salvador, executed after his marriage to Petitioner."

Rose appealed the trial court’s decision and this decision was affirmed on appeal.

Herrador v. Herrador, San Mateo County Superior Court case no. 23-PR0-00365