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 A recent unpublished appellate decision touched upon the testator's alleged execution of her will.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 

Will Revocation by Cancellation

When a client seeks to write a new will invariably the question of what to do with the prior will arises. There are two ways under CA law to revoke a will, express revocation or cancellation. Probate Code §6120. The former is typically used as most wills includes a clause that the will revokes all prior wills. For the latter, a recent partially published appellate case focused on revocation by cancellation.

"In this will contest, siblings Anush Boyajian and Robert Boyajian assert competing documents regarding their deceased mother's testamentary intent—respectively, a will signed in 2006 and a document signed in 2018. The court ruled for Robert, concluding the 2018 document "canceled" the will, thus revoking it. (Prob. Code, § 6120, subd. (b) (section 6120(b).)^[2]

Anush contends the trial court erred because revocation by cancellation must occur by physical alteration of the will—not by a separate, stand-alone document. Robert disagrees but also asserts the revocation was valid pursuant to section 6120, subdivision (a) (section 6120(a)), because the 2018 document qualified as a "subsequent will."

In the published part of this opinion, we conclude California law (1) requires a physical alteration of a will to effect a revocation by cancellation, and (2) a stand-alone revocation does not constitute a subsequent will unless it also transfers property upon death. The court thus erred by giving effect to the 2018 document.

Robert cross-appeals, claiming the record required the trial court to find Anush procured the 2006 will through undue influence. In the nonpublished part of this opinion, we find the court reasonably found there was no undue influence. Thus, we reverse and remand for the court to enter a new judgment giving effect to the 2006 will."

Estate of Boyajian (2025) _____ Cal.App.5th _____. 

In terms of physical alteration of the will to effect revocation by cancellation, another appellate case provided the colorful details in which the testator revoked their will.

"At trial, Anne Marie Meier testified that she was a very close friend of decedent. One night in 2005, decedent was discussing "estate planning," and he asked Meier to "get a piece of paper and a pen." He then dictated the terms of the 2005 will. Meier wrote that document in her handwriting "word for word" from decedent's dictation. She handed it to him, "he looked at it and he signed it." Decedent told Meier that this was his last will and testament. Moreover, in front of the witnesses, he urinated on the original copy of the 1997 will and then burned it." (emphasis added).

Estate of Stoker (2011) 193 Cal.App.4th 236, 240.

Lodging a Will

If a person passes away with a will, the will's custodian is obligated to lodge the will with the superior court in the county in which the decedent resided within 30 days of knowing that the decedent passed away and to deliver a copy of the will to the nominated executor, or a beneficiary if the executor cannot be located and a beneficiary can be located. Probate Code §8200(a). 

Periodically I have been involved in cases in which a disinherited heir raises strenuous objections about the will not being lodged within 30 days. These objections are almost invariably rooted in emotion rather than logic. It is hard to foresee the monetary damage caused to a disinherited heir if a will is lodged 25 days after death as opposed to 90 days after death. If the will is valid, the disinherited party will receive nothing from the estate. Therefore, the financial position of the disinherited heir will not change one iota regardless of when the will is filed. Furthermore, lodging the will after 30 days does not invalidate the will. A recent unpublished appellate opinion addressed this issue.

"The decedent, Artis Mae Myrick Finn, died on March 20, 2021. Two days later, a relative notified Crandall, who lived out of state. Crandall then spoke with Myrick, who also lived out of state."

"On April 8, Laura filed a petition to probate Finn's estate. She filed the 1983 will and 1991 codicil with the trial court on May 13—fifty-three days after Finn's death." 

"On the other hand, we agree with Myrick that we can review de novo his contention about untimely filings of the will and codicil because it is based on an undisputed timeline. Myrick correctly notes that Finn's will and codicil were filed in the trial court more than 30 days after her death. (§ 8200, subd. (a).)^[6] He concludes that, because the documents were filed untimely, they "[t]herefore, . . . should not have been admitted into evidence."

But Myrick cites no case law requiring a trial court to exclude an untimely filed will, and we have not found any ourselves. Nor has he shown any arguable error was prejudicial. Indeed, the statute itself suggests the only remedy for untimely filing is a claim for money damages for proximately caused harm. (§ 8200, subd. (b); see County of Los Angeles v. Nobel Ins. Co. (2000) 84 Cal.App.4th 939, 945 ["`appellant bears the duty of spelling out in his brief exactly how the error caused a miscarriage of justice'"].)"

Estate of Artis Mae Myrick Finn, Orange County Superior Court case no. 30-2021-01194661

Evidence in a Contested Matter

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. 

 

Holographic Will

A recent unpublished appellate opinion addressed the validity of a holographic will that was executed roughly 45 days before the testator passed away. The testator executed a holographic will on November 8, 2017 and passed away on December 25, 2018. So in 2021, this was case still ongoing..........

Interestingly the testator, a California attorney, had written two prior holographic wills. 

"Edward, a lawyer, drafted three holographic wills, each on a single piece of paper from a legal pad. The first two, drafted in July 2014 and December 2016, were written neatly, with few spelling and grammatical errors. They left either $40,000 (July 2014 will) or $75,000 (December 2016 will) to Barbara, with the remainder of Edward's estate going to his sister Marcia. Both wills also provided contingencies for what would occur should either Barbara or Marcia predecease Edward. The December 2016 will additionally revoked Edward's previous will, and named an executor (Marcia, or Randi Sue Berger (Marcia's daughter) should Marcia predecease Edward).

The Contested Will, drafted on November 8, 2017, read:      

"My Last Will and Testiment [sic]      

"I Edward M Sherman, hereby giives [sic] to Barbara Garrison my home at 15743 Hesby Strreet [sic], Encino, California 91436 and all my other money and possesions [sic].      

"Nov. 8, 2017      

"This is my last Will and Testiment this [sic].  

"Edward Martin Sherman"  

It is uncommon in a will contest to have two prior holographic wills. Still, this circumstance was quite elucidating when determining whether the contested will was valid or not. That is, the litigants and their experts reviewed the prior two holographic wills to see how the contested will was analogous or distinguishable.

For example, an expert witness in this case, a medical doctor, opined "that the misspellings in the Contested Will, along with the way the writing did not stay within the lines, raised concerns about the writer's cognitive abilities. He had no concerns regarding the July 2014 and December 2016 wills, noting they were more thorough, in-depth, and legible, compared to the Contested Will."

Ultimately, the appellate court affirmed the trial court's ruling that the testator lacked sufficient testamentary capacity to write and execute a holographic will. 

Estate of Edward Martin Sherman, Los Angeles County Superior Court case # 18STPB03628.

Holographic Will

A holographic (i.e. hand-written) will is permitted in California provided the material provisions are in the testator's hand-writing (the person writing the will) and is signed by the testator. Probate Code §6111(a).

A recent unpublished appellate opinion focused on the signature's location in the holographic will.

The holographic will in question read:

"I Harry Edward Mitchell of [¶] Being Sound Man, Quit Claim my wife [¶] Debra Mitchell the house at [¶] 21600 Calle Degado Yorba Linda [¶] And all contents and cars [¶] At the residents."

The objectors of the will argued that the will was invalid primarily because it lacked a signature. The appellate court disagreed and held that the lack of a signature was not fatal to the will's validity. A prior case, Estate of Williams (2007) 155 Cal.App.4th 197, held that writing one's name at the top of the document satisfied the signature requirement if the document was otherwise complete. Similarly here, the testator had written his name at the top of the document and it was otherwise complete. While the will's verbiage was not grammatically sound, i.e. "at the residents," the tesator's intent was clear. The testator wanted to leave the majority (if not all) of his estate to his spouse.

Estate of Mitchell, Orange County Superior Court, Case No. 30-2017-00896904.   

If hypothetically the holographic will was invalid, Mr. Mitchell would have died intestate (without a will). Consequently, his community property would have been distributed to his surviving spouse, the petitioner in this matter. Probate Code §6401. Mr. Mitchell's separate property would have been distributed to his surviving spouse and his children, the objectors in this matter. Probate Code §6402.  

I should mention that this case had two variables which portend litigation, a step-parent/step-child relationship and a holographic will. In the case of the latter component, a holographic will does not require attestation. Thus, it is entirely possible that the testator can write their will privately whereby it is a complete mystery to everybody on earth. Naturally relatives and friends might hear about such a will, but there is no person who can definitively say that they saw the testator sign their will in their presence and they signed such document as a witness.

Will Contest & Statute of Limitations

A litigant often files a petition to contest the validity of a testamentary document shortly after discovery of the supposed flawed document. Rarely does a litigant delay filing suit. One principal reason for this is because of the statute of limitations. 

A litigant might have a colorable claim, but the law imposes on them the requirement to file suit in a timely manner. Otherwise their claim is time-barred because of the statute of limitations and their case will be dismissed. This produces finality to matters. If a litigant has an endless amount of time to file suit, this can be disruptive to any party because there is no assurance that the legal situation has been resolved. For example, if real property is involved, the owner will be discouraged from improving it as they fear a lawsuit could cause them to relinquish ownership in the property.

The facts of one recent unpublished appellate case related to a will contest that was unsuccessful because the statute limitations had run.

"Craig sued the estate of his father's widow and other individuals for intentional interference with expected inheritance and constructive trust contending the holographic will submitted to probate by his father's widow was fraudulent and the defendants intentionally used an incorrect address for Craig so he was not given proper notice of the probate proceedings. He alleged he did not discover the fraud until he reviewed the probate file in 2014.

In their answers, the defendants asserted the statute of limitations as an affirmative defense. Following a bench trial, the court found the statute of limitations expired for Craig's action and found in favor of all the defendants.

At Craig's request, the court prepared a settled statement setting forth the procedural background of the case and identifying the witnesses and evidence presented at the bench trial. The court summarized its findings, stating: "the [c]ourt found that the statute of limitations has expired and ruled in favor of defendants. Plaintiff claims that the will that was probated 24 years ago was fraudulent. Defendants established that the will and probate of deceased, Samuel C. Craig, Sr., was properly executed 24 years ago and that the probate was properly heard before San Diego Superior Court. The [s]tatute of [l]imitations bans a challenge to the will and probate after a 20[-]year delay. Case was dismissed." 

Craig v. Cardona, San Diego County Superior Court case # 37-2015-00010184

Will Interpretation

A primary purpose of a will is to exactly identify who the testator wants to inherit their estate. If the person does not care, they can simply choose to abstain from writing a will and let the laws of intestate succession govern the disposition of the estate. Consequently, their next of kin, heirs to use legal parlance, would inherit their estate.  

In a recent unpublished appellate opinion, the California Court of Appeal had to determine which individual the testator was referring to in their will.

"The decedent had two "Janets" in his life: (1) a daughter named Janet Benninghoff, who was known as Janet Derickson before she married; and (2) a companion, associate, paramour, or friend of sorts named Janet Whelan. Whelan contends that she is "Janet Derickson [] Whelan." The estate administrator and Benninghoff assert that Benninghoff is."  

"A page entitled "Upon Death" lists five numbered clauses. The first clause bequeaths a piece of real estate to "Janet Derickson nee Whelan." The second gives another property to "Janet Benninghofen." The third provides that "Janet Derickson-Whelan, Linn Derickson Jr and Judy Hughes" will share equally in the profits from several of the decedent's assets; the fifth specifies that upon the death of "Janet Derickson, Whelan [¶] Linn Jr Derickson and Judy Hughes," the aforementioned profit shares become part of a remaining trust. The fourth provides that the equity in trust "other than items 1 and 2" goes to Hughes's three children. A separate page entitled "Put in Living Trust" and the following page list ten assets, including the homes referenced in the first and second clauses of the "Upon Death" document."

The court ultimately held that 

"Whelan prevails. Because she had a romantic relationship of some kind with the decedent, "Janet Derickson [] Whelan" could plausibly refer to her; the two may well have planned to wed at some point in the future. The same cannot be said of Benninghoff, who has no ties to the surname "Whelan." And the will provides for Benninghoff as "Janet Benninghofen" elsewhere. In light of the language used and the circumstances surrounding the will's execution, there is only one reasonable construction. Whelan is "Janet Derickson [] Whelan."

Another excerpt from the opinion shed light on how the family viewed the decedent's lady friend:

"At some point before his separation from Mary Sue, the decedent began a relationship of sorts with appellant Janet Whelan. The precise contours of Whelan's status vis-à-vis the decedent are unclear. The decedent's obituary dubbed her a "special friend." She has described their association as "what politely might be termed an `extramarital illicit relationship' for an extended period." In briefing before the probate court, Mary Sue, Benninghoff, and the administrator used the more colorful designation "paramour." However, in other briefing before the probate court, the administrator opted for more distant language, stating Whelan "was apparently an associate of the [d]ecedent, but the extent of that relationship is unknown."

San Bernardino County Superior Court case # PROPS0900650.

Holographic Will

This unpublished appellate opinion demonstrates how certain facts ostensibly entice litigation.  

Callahan v. Callahan, Los Angeles Superior Court Case # BP108910.  

John Callahan was originally  married to Pauline Callahan for many years. Pauline passed away in 1999.

"John and Angela Callahan met in early February 2000 when she became John's caregiver. They were married on September 26, 2000. John did not inform his children of the marriage until 2003."

There are a couple of interesting facts just from the above paragraph. First, John married his caretaker. I would venture to say that most caretakers do not marry their care recipients. Second, John married her within 7 months of meeting her. That would constitute a whirlwind romance. Third, John did not mention his marriage to his children. As a parent, I would tell my child if I re-married. 

"On December 9, 2006, John executed a holographic will providing that upon his death, Angela would receive a life interest in his home where they lived. When Angela died, the house was to be conveyed to John's four children, with an interest also given to Ethel Meneses, Angela's daughter from her first marriage."

Again an interesting fact. John wrote a holographic will. I have never advised a client, who has sufficient time, to draft a holographic will. A holographic will is almost always an ill-conceived idea. I have never met, and I doubt I ever will, a non-lawyer with a firm grasp of probate law. Thus, the person pens the holographic will under the erroneous assumption that the document is clear, concise and enforceable. Typically a holographic will lacks at least one, if not all, of those aforementioned attributes.    

"On December 15, 2007, John signed a holographic will giving both Angela and Ethel a life estate in his home, with the property passing after their deaths to John's children. John suffered a heart attack on December 17, 2007, and died on December 27, 2007.

In February 2008 Angela filed a petition for probate of the 2007 will and for letters of administration with will annexed, as well as a petition to administer John's estate. She attached a copy of the 2007 will to the petition for probate. John's children objected to the admission to probate of the will, to Angela's request to be appointed personal representative to administer John's estate." 

In hindsight, John and Angela should've consulted with an attorney in regards to their estate plan. Since more than a year elapsed between the drafting of the 1st and 2nd holographic wills, there was ample time to find a suitable attorney. If an attorney had been retained, the likelihood of litigation would've decreased. By opting for the holographic will route, the facts almost invited a lawsuit.

Estate of Sobol - Standing to Challenge a Will

The California probate code requires that only a certain class of individuals can challenge a will. In legalese, this is known as standing. 

An individual who wishes to contest a will must be considered an “interested person." Prob C §48(a). An “interested person” is defined as an heir, devisee, child, spouse, creditor, beneficiary or any other person having a property right in or claim against a trust estate or decedent's estate that may be affected by the proceeding, any person having priority for appointment as personal representative, or a fiduciary representing an interested person. Prob C §48(a). For example, a beneficiary of a subsequent will has standing to contest an earlier will that affects their bequest. Estate of Powers (1979) 91 CA3d 715. Although, “the meaning of ‘interested person’ as it relates to particular persons may vary from time to time and shall be determined according to the particular purposes of, and matter involved in, any proceeding." Prob C §48(b). 

A recent California Court of Appeal decision addressed the standing issue for an ex-executor involving a very large estate. Estate of Sobol ____ Cal App. 4th ___ (2014).

On December 23, 2010 Sonia Sobol drafted a will which named Jay Rose as her executor and a trust which also named Jay Rose as trustee. On September 27, 2012, Ms. Sobol amended her will and replaced Jay Rose as the executor with her bankruptcy attorney Terry Shaylin along with Dolores Diehl and Maria Da Costa-Iyer. Ms. Sobol passed away a few months later on December 15, 2012. The estimated value of her estate, per the opinion, was $22M. 

The executors of the 2012 will then filed a petition to have the will admitted to probate. Mr. Rose objected to the petition, arguing incapacity, fraud and elder abuse. Mr. Rose's intent was to invalidate the 2012 will and have the 2010 will become the operative instrument. The petitioners demurred to his objection, stating that Mr. Rose lacked standing to challenge the will’s validity. In particular, the petitioners asserted that Mr. Rose was not an “interested person” as defined by the California probate code and therefore lacked standing to challenge the validity of the 2012 will. The trial court sustained the demurer without leave to amend, thereby essentially dismissing Mr. Rose’s objection. This decision was then appealed to the California Court of Appeal. 

The Court of Appeal found that Mr. Rose was simply a former executor who otherwise had no affiliation to the estate. He was not a beneficiary of Ms. Sobol’s will, nor was he an heir, i.e. next of kin via intestate succession. Hence, Mr. Rose lacked the requisite standing necessary to contest Ms. Sobol’s 2012 will and his objection was properly dismissed by the trial court.