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| Santa Clara Co. Sup. Court, Old Courthouse |
In a typical probate case in which the decedent passed away testate (the decedent wrote a will), the petitioner will file a verified petition seeking admission of the will to probate. The petition will need to be filed in the decedent's county of residence when they passed away, i.e. their domicile. While a decedent can have multiple residences, they can only have 1 domicile. Domicile is established when a person resides in a location and intends to make it their primary residence. Estate of Phillips (1969) 269 CA2d 656, 659.
Probate Code §1022 provides that "an affidavit or verified petition shall be received as evidence when offered in an uncontested proceeding under this code."
For example, assume that Francois Henry wrote a holographic will in 2020. In 2021, Mr. Henry passed away in a tragic hot-air balloon accident while vacationing in Hawaii. At the time of his passing, Mr. Henry was a Monte Sereno, CA domiciliary. The will named Jean-Claude Pires, Mr. Henry's neighbor, as the primary executor of the will and sole beneficiary of Mr. Henry's vast estate. Mr. Pires then filed a verified petition in Santa Clara County Superior Court seeking to admit Mr. Henry's will to probate.
Mr. Pires was required by the Probate Code to notify all of Mr. Henry's heirs (next of kin). One of Mr. Henry's heirs, his nephew Robespierre Toussaint, believed that the will was a forgery and filed an objection challenging the validity of the holographic will, i.e. a will contest.
Since Mr. Toussaint's objection turned the case into a contested matter, the verified petition filed by Mr. Pires alleging that the holographic will was valid could not be used as evidence. "When challenged
in the lower court, affidavits and verified petitions may not be considered
as evidence at a contested probate hearing." Evangelho v Presoto (1998) 67 CA4th 615, 620. Thus Mr. Pires would be required to provide witness testimony to support his allegation that Mr. Henry's holographic will was valid. For example, Mr. Pires could retain an handwriting expert to opine if the handwriting on the will was that of Mr. Henry's. Furthermore, he could provide witness testimony from those familiar with Mr. Henry's handwriting to support his case. Finally, Mr. Pires could provide witness testimony that described how Mr. Henry had mentioned to them writing a will and naming Mr. Pires as the executor and sole beneficiary. Conversely, Mr. Toussaint could retain his own handwriting expert to opine if the handwriting on the will was that of Mr. Henry's. Moreover, Mr. Toussaint could provide witness testimony that revealed that Mr. Henry and Mr. Pires had a superficial friendship and Mr. Henry had described leaving his estate to various charities rather than Mr. Pires.
