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 A recent unpublished appellate decision touched upon the testator's alleged execution of her will.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

Survivorship Condition in a Will

A testator can attach certain conditions to a beneficiary's receipt of an inheritance. For example, the testator could require the beneficiary to be of a certain age before they receive unrestricted access to the asset, e.g. 25. Or the testator could require that the beneficiary achieve an educational milestone, e.g. a high school diploma or a bachelor's degree, before they receive unrestricted access to the asset. 

The most basic condition for a beneficiary to inherit from a decedent is for the beneficiary to survive the testator. For instance, the will might say "a beneficiary must survive the testator for at least 30 days in order for their interest to vest."

Occasionally I have had cases where the will lacks a survivorship clause. My impression is that the plain-meaning of the will indicates that the beneficiary only needed to survive the testator by a moment in order for the beneficiary's interest to vest.

Of note, the lengthiest survivorship period I've seen in a will or trust has been 6 months. A 30-day survivorship period is quite common.

A recent unpublished opinion focused on the lack of survivorship clause in a will.

"The issue in this appeal is whether the probate court correctly interpreted a will. The will provision in question establishes a trust for the benefit of the testator's daughter and directs that if the daughter dies without issue, 'then and in that event my trustee shall pay, deliver and convey all of the trust estate then remaining in its hands to my son."

The testator had two children, John and Maria. 

John passed away in 2014 and Maria passed away in 2020.

The trial court determined that the above language in the testator's will required John to survive Maria in order for John's interest in Maria's trust to vest. On appeal, the appellate court reversed this decision.

"None of respondents' arguments can overcome the fundamental principle that the express language of the will controls, and there is no requirement expressed in the will that John survive Maria. We must give effect to the intention of the testator as expressed in the will, even if plausible arguments can be made about what Genevieve intended. (See Keller, supra, 134 Cal.App.2d 232, 236 [contrary arguments regarding testamentary intent are disregarded when the intent of the testator can be gathered from the wording of the will].)"

Estate of Turco, Santa Clara County Superior Court case no. 1990-1-PR-125299

Joint Account and Will

A recent published appellate opinion addressed the sufficiency of a will to negate a right of survivorship for a joint brokerage account.

Placencia v. Strazicich (2019) _______ CA4th _______

"In 1985, Ralph opened what the parties refer to as the Franklin Fund account with an initial deposit of $140,000. Lisa was listed as a co-owner. Lisa's counsel states the paperwork submitted to open the account specifies that it is a joint account with right of survivorship, though the copy in the record is almost entirely illegible. Regardless, Stephanie stipulated that the account was opened as a joint tenancy with right of survivorship. Moreover, an account statement from 2009 addressed to Ralph and Lisa bore the acronym "JT WROS," which appears to stand for joint tenants with right of survivorship.
 
Lisa, who was 23 years old at the time, had no involvement in opening the fund. Ralph told Lisa that he put her on the Franklin Fund, but never had any other discussion with her about it. Lisa never deposited money into the account, all of which, to Lisa's knowledge, came from Ralph. Lisa never withdrew money from the account during Ralph's lifetime. The account paid dividends, which Ralph took during his lifetime.

Ralph passed away in December 2009. In the months leading up to his death, Ralph had a number of conversations with Henry Rivera, his brother-in-law, which resulted in Henry assisting Ralph to prepare a will and trust, which Ralph executed approximately 11 days before his death. His will left specific directions as to the Franklin Fund account: "Remove Lisa Strazicich as sole beneficiary of my Franklin Fund. I want the beneficiaries to be Lisa Strazicich, Stephanie A. Placencia and Tina R. Placencia, my three daughters. I want the Franklin Fund to be placed into my trust fund and then be used to pay off the mortgage of my home in Huntington Beach, CA." Henry confirmed that Ralph specifically made these requests in their conversations."

The general rule is that "sums remaining on deposit at the death of a party to a joint account belong to the surviving party or parties as against the estate of the decedent unless there is clear and convincing evidence of a different intent." Probate Code §5302(a). Moreover, "a right of survivorship arising from the express terms of the account or under this section, a beneficiary designation in a Totten trust account, or a P.O.D. payee designation, cannot be changed by will."  

Ultimately the Court of Appeal ruled that Ralph's will negated the right of survivorship and the account should be part of his probate estate, as opposed to being distributed to his daughter, the surviving joint account holder.

Lapsed Residuary Gift

Occasionally a will names as an individual as a beneficiary who does not survive the testator. For example, Tom writes a will and names his friend Ben as a 20% residual beneficiary of his estate. Ben dies before Tom and there is no clause in the will that states what happens to Ben's 20% interest should he predecease Tom. The following issue arose in a recently decided published appellate opinion in California. 

The case originated in Contra Costa County Superior Court.

Estate of Stockird (2018) _______ CA4th _______

"Cheryl D. Stockird died, leaving a handwritten will that transferred "all my property and everything I may be entitled to inherit" to her life partner, John L. Aguirre, Sr., and an aunt related by marriage, Patricia Ambrose. The will did not include alternative provisions for disposition of the shares if either gift lapsed. Ambrose died before Stockird."

"On February 3, 2014, Stockird executed a holographic will, which provided in its entirety as follows:

"Will

"I Cheryl Denise Stockird declare this as my last will. I am single and I have no children. I hereby leave all my property and everything I may be entitled to inherit to:

"65% John L. Aguirre Sr.

"35% Patricia Ambrose

"I sign this on February 3, 2014.

"[Signature: Cheryl D. Stockird.]"

Aguirre was Stockird's long-time life partner. Ambrose, who was not related by blood to Stockird, had been married to Stockird's predeceased maternal uncle. Ambrose died in June 2014.
Stockird died in January 2015. Stockird's will was admitted to probate, and Aguirre was appointed administrator with will annexed."

"After Stockird died, her will was admitted to probate. Aguirre petitioned the probate court for an order declaring he is entitled to Stockird's entire estate as the sole surviving residuary beneficiary under Probate Code section 21111, subdivision (b) (§ 21111(b)). Stockird's half brother, Bruce Ramsden, filed a petition arguing the lapsed gift to Ambrose must instead pass to Stockird's estate under section 21111, subdivision (a)(3) (§ 21111(a)(3)). Ramsden then asserted that as Stockird's only surviving heir, he is entitled to distribution of Ambrose's share under the laws of intestacy.

The probate court agreed with Ramsden and entered an order transferring the residuary gift that would have passed to Ambrose to Stockird's estate."

The court of appeal reversed, finding that "the plain language of the statute and the clear intent of the Legislature to abolish the no residue of a residue rule and avoid intestacy, we conclude the 35 percent lapsed gift does not go to Stockird's estate under section 21111(a)(3), but, subject to determination of the reformation petition filed by Ambrose's descendants, must pass to Aguirre under section 21111(b)." 

Joint Bank Account

A typical financial arrangement between an elderly parent and a child is for parent and child to be joint bank account holders. This allows the child to pay various bills for their parent. When the parent passes away, an inevitable legal issue arises. That is, (1) did the parent create the joint account with the intent that it pass to the child upon their death or (2) did the parent simply create the joint account with the intent that it be accessible as a matter of convenience for the child to pay the parent's expenses. If (1), the child receives the bank account as the surviving joint account holder. If (2), the parent's estate receives the bank account and it is distributed via their will or intestate succession.

The applicable law says "Sums remaining on deposit at the death of a party to a joint account belong to the surviving party or parties as against the estate of the decedent unless there is clear and convincing evidence of a different intent." Probate Code § 5302(a).

For reference, clear and convincing is a higher evidentiary standard than preponderance of the evidence but less than proof beyond a reasonable double. Most people have heard of proof beyond a reasonable double because that is the standard used in criminal cases. Preponderance of the evidence is the normal standard in civil cases.

The following is an example of how this scenario can hypothetically play out. Widowed mother and daughter venture to the local credit union to open a joint bank account. Mother's mobility is limited and she would have peace of mind if daughter could pay her household bills. Son lives in another state so he is unable to be of assistance. Prior to her passing, mother writes a will that devises her entire estate equally to her daughter and son. Mother then passes away. 

In order for the bank account to be an estate asset, son would need to provide clear and convincing evidence that mother intended for the joint bank account to pass via her will instead of to daughter as the surviving joint account holder. 

It is common to find cases where the testamentary document and the joint account arrangement conflict. The reason being is that estate planning is not always the sole impetus for titling one's financial accounts.
  
This issue was recently litigated in a recent California Court of Appeal case, In Re Estate of O'Connor (2017) ___ C4th___.

Amanuensis - Estate of Stephens

Can a person sign for somebody else on a document without their written authorization, e.g. on a deed? The answer is yes. The legal term for this is "amanuensis." See  Estate of Stephens (2002) 28 C4th 665.

In Estate of Stephens, the decedent orally instructed his daughter to sign his name on a grant deed which vested title in the decedent and the daughter as joint tenants. When the decedent passed away, the daughter argued that the property was hers because she was the surviving joint tenant. The son argued that the property should be divided equally between the son and daughter, as stated in decedent's will. 

The California Supreme Court ultimately ruled that the conveyance was valid, citing the amanuensis rule. It provides "that where the signing of a grantor's name is done with the grantor's express authority, the person signing the grantor's name is not deemed an agent but is instead regarded as a mere instrument or amanuensis of the grantor, and that signature is deemed to be that of the grantor." In this case, the daughter's signature "was a mere mechanical act, and not an exercise of judgment or discretion." The decedent told the daughter to sign the deed on his behalf and she did so.

Still, the opinion noted that "the signing of a grantor's name by an interested amanuensis must be presumed invalid. In such a case, the interested amanuensis bears the burden to show that his or her signing of the grantor's name was a mechanical act in that the grantor intended to sign the document using the instrumentality of the amanuensis." 

The rationale for such a law is evident. A person who stands to benefit from signing a document on somebody's behalf will naturally do so under just about any circumstance. Thus to eliminate fraud, the signatory needs to show that they signed the document at the person's dictation, instead of signing the document out of self-interest.

The California Supreme Court concluded the opinion by agreeing with the trial court's determination. "Given that Shirley was an interested party to the deed, it is presumed that her signing of Austin's name was invalid. However, this presumption has been successfully rebutted in this case. The trial court found, based on overwhelming evidence, that Shirley acted as a mere amanuensis, signing the deed at Austin's direct request, albeit not in his immediate presence. Because her signature was a mere mechanical act, and not an exercise of judgment or discretion, Austin's oral instruction to Shirley was sufficient. 'It is perfectly natural for a parent to be more bountiful to one of his children who has assumed the greatest burden of care and lavished the highest degree of solicitude upon him.' Camperi v. Chiechi, supra, '134 Cal.App.2d at p. 505."

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.

Residuary Clause in a Will

An important clause to include in a testamentary document such as a will is a residuary clause. This clause serves as a catch-all for any item that is not specifically distributed in the document. The benefit of including a residuary clause is that it serves as a safeguard in case the person fails to distribute their entire estate through specific gifts. Otherwise, the asset or assets will be distributed to their next of kin, i.e. intestate succession. The following example illustrates this point.

Mo Mozart was a widower who had no children. Mo's estate was mainly comprised of a home and bank account. Yes, Mo had a austere existence. Mo decided one day to write a will without the assistance of a lawyer. He found an online will template that was palatable to him. Unbeknownst to Mo, the online form did not contain a residuary clause.  

Mo devised his home to his close friend Bob Beethoven and his bank account to another close friend, Harry Handel. Both were musicians like him. I hope you can see the musical angle here. He also named the two of them co-executors.     

One of the reasons Mo decided to write a will was to make sure that his next of kin, Bo Mozart, his brother, did not inherit his estate. Mo was disappointed that Bo opted to become a professional mime instead of pursuing a career in music like the rest of his family. Mo believed that his will would ensure that Bo did not inherit from him. Or so he thought........

When Mo passed away, his will was submitted to the local probate court by Bob and Harry. An inventory and appraisal of his estate showed that in addition to his house and bank account, Mo had many items that were not accounted for in his will, notably musical instruments.

Bo was notified of the probate because he was next of kin (this is required by CA law). When Bo realized that Mo had not specifically mentioned the distribution of his musical instruments in the will and it contained no residuary clause, he petitioned to be named the beneficiary of the musical instruments. Due to those two aspects, the musical instruments became part of Mo's intestate estate. See Probate Code § 21111(a)(3) This meant that the musical instruments were treated as if Mo wrote no will. Therefore the musical instruments would be distributed to his next of kin, i.e. Bo. Naturally Mo wanted to avoid this scenario. Unfortunately Mo was not given proper legal advice when he wrote his will. Alas Mo could not change his will from beyond the grave and Bo became a beneficiary of Mo's estate.

People v. Craig

Probate proceedings rarely mushroom into a criminal proceeding. However, in the case of a forged document, a criminal prosecution can arise. Herein lies the story of a forged will and an eventual criminal conviction.

People v. Craig, Los Angeles County Superior Court Case # GA086289

Sherry Behrle was a dependent adult living in Tujunga, CA. Due to her age and physical condition, she was assisted by a caregiver, Kelli Dawn Craig. Ms. Behrle passed away on April 14, 2010. Ms. Behrle's brother visited her residence the next week and was informed by Ms. Craig that Ms. Behrle had penned a will that distributed her entire estate to Ms. Craig. Or so it seemed........

According to the unpublished appellate opinion (Appellant is Ms. Craig/Lundquist and Norman were co-conspirators):

"Los Angeles Police Sergeant Robert Grant investigated the present case and interviewed appellant. Appellant told Grant the following. Appellant had known Behrle a long time and had been her caregiver during the latter part of Behrle's life. On April 28, 2010, appellant, Lundquist, and Norman created a will that was submitted to the probate court. Norman actually created the will, and Lundquist and Norman were going to be witnesses. Appellant signed Behrle's signature on the will and signed Behrle's initials on the witness page. At some point when appellant, Lundquist, and Norman were completing the will, they realized Lundquist and Norman had signed the wrong date, i.e., April 28, 2010, on the witness page. A new witness page was signed with the date February 8, 2010.

Grant had appellant identify where she had signed or initialed the will. Appellant circled and initialed where she had signed. She did the same thing on the second page (the witness page) of the will. The interview was tape-recorded but the recording was lost. The will (People's exh. No. 16), with appellant's circling and initialing, was admitted into evidence."  

Ms. Craig, at trial, apparently had a different viewpoint of the facts:

"Appellant denied telling Grant she forged the will or gave it to Lundquist and Norman to sign, and denied preparing any portion of the will or signing it. Appellant circled items on the will because she was afraid Grant would arrest her former husband and take her children. Lundquist, Norman, and Grant lied during their testimony and only appellant told the truth. Kurt Kuhn, a forensic science consultant, examined the will and opined it suggested appellant did not sign Behrle's purported signature."

Ultimately a jury convicted her on two charges, perjury "and forgery committed by altering, corrupting, or falsifying a legal document. (Pen. Code, §§ 118, subd. (a), 470, subd. (c).) The court sentenced appellant to prison for two years."

On appeal, her conviction was upheld in an unpublished opinion.

Estate of Duke - Will Reformation

The law in California used to be that in the case of an unambiguous clause in a will, extrinsic evidence could not be introduced to reform it. Stated in non-legalese, the term or terms of a will could not be altered through documentation outside the four corners of the will if the term or terms were clear. This past week, however, the California Supreme Court unanimously held that extrinsic evidence could be used in such a case.

Estate of Duke (2015) ___ C4th ___

The facts of the case were straight-forward:

"Irving Duke prepared a holographic will providing that, upon his death, his wife would inherit his estate and that if he and his wife died at the same time, specific charities would inherit his estate. The handwritten will, however, contained no provision addressing the disposition of his estate if, as occurred here, he lived longer than his wife. The specified charities contend that at the time the testator wrote his will, he specifically intended to provide in his will that the charities would inherit his estate in the event his wife was not alive when he died. The courts below excluded extrinsic evidence of the testator's intent, finding that the will was unambiguous and failed to provide for the circumstance in which his wife predeceased him. Therefore, finding that Duke died intestate, the court entered judgment in favor of the heirs at law, Seymour and Robert Radin."

Prior case law, i.e. Estate of Page (1967) 254 Cal.App.2d 702, 719, held that a will could not be reformed, through the use of extrinsic evidence, if the will's language was unambiguous.  

However, in the Estate of Duke, this prior case law was overturned. The Duke Court held that "an unambiguous will may be reformed to conform to the testator's intent if clear and convincing evidence establishes that the will contains a mistake in the testator's expression of intent at the time the will was drafted, and also establishes the testator's actual specific intent at the time the will was drafted."

Given the amount of money at stake, over $5M, it is not hard to see why this case ended up in the California Supreme Court. Litigation is expensive and appeals are even more expensive. Hence, there typically is a large amount of money at stake when a probate case reaches the California Supreme Court.

Executor of a Will (Letters Testamentary)

A statement I commonly hear, albeit erroneous, is where a person mentions that a relative or friend passed away and they are now the executor after reading their will. However, this hypothetical person is misinformed in terms of California probate law. An executor is only appointed following a court order. Simply by reading a will and seeing you are the nominated executor does not automatically make you the appointed executor of an estate. There is a process in becoming the executor.

In order to become appointed executor of a testator's estate, such person has to petition for probate with the appropriate superior court. If the decedent resided in California, "the proper county for proceedings concerning administration of the decedent’s estate is the county in which the decedent was domiciled, regardless of where the decedent died." Probate Code § 7051. If the testator was domiciled in Monte Sereno, CA but died in Auburn, CA, the proper county to petition for probate would be Santa Clara County not Placer County. Usually determining the decedent's domicile is relatively easy, you just figure out where the decedent lived permanently. Domicile is just a fancy way of saying "permanent residence" or "permanent home." Granted a permanent residence can change over time but you can only have 1 permanent residence at a time. Just try me on this one.

When a person petitions for probate, they submit to the probate court various judicial council forms and a copy of will. Form DE-111, the main document, will ask basic background information about the decedent such as where they resided, if they were married, if they had children, when they passed away, the approximate value of their estate, if they had a will, etc. The judicial council forms can be found here. 

If all the appropriate forms have been correctly submitted, an order for probate will be granted (Form DE-140) and at that point, an executor will be appointed (Form DE-150). If an executor is appointed, DE-150 is completed as letters testamentary. 

Once appointed executor, such person can deal with third-parties on behalf of the decedent's estate. Although third-parties will ask for a copy of letters testamentary as evidence of the executor's authority to act. For instance, a bank will ask for a copy of letters testamentary if the executor desires to access the decedent's account there.         

Lodging of a Will - Probate Code §8200

When a testator passes away, i.e. a person who wrote a will, California law requires the custodian of the will to deliver such to the clerk of the superior court of the county where probate may be initiated. Probate Code §8200. For example, if the testator was a domiciliary of Los Gatos, CA, the custodian of the will would lodge it with the Santa Clara County Superior Court at the 191 N 1st Street courthouse in San Jose. 

The custodian could be a relative, neighbor or the testator's attorney. 

The additional requirement of Probate Code §8200 compels the custodian to mail a copy of the will to the executor, if their whereabouts are known, and if the executor's whereabouts are unknown, the custodian is to mail a copy to a beneficiary, if their whereabouts are known.

AB-2166, a proposed bill in the California legislature, seeks to reduce the obligations on the custodian. AB-2166 would amend Probate Code §8200 such that the custodian would only have to comply with one of the above obligations. That is, the custodian would only have to either (1) mail a copy to the executor or beneficiary or (2) lodge the will with the superior court. If the custodian chooses to deliver the will to the executor or beneficiary, the following notice would need to be included in at least 10-point font:

“As the successor custodian of the decedent’s will, you have a duty pursuant to Section 8200 of the Probate Code to deliver the will within 30 days of receipt to the superior court of the county in which the estate of the decedent may be administered. Additionally, if you are not the person named in the will as executor, but know the whereabouts of the person who is named in the will as executor, you are required to mail a copy of the will to the person named as executor.” 

The rationale behind the bill was to make it easier for the will to be filed. If the custodian is not named in the will as either an executor or beneficiary, they still have to pay $50 to the superior court to have the will lodged. Although the probate code expressly permits the custodian to be reimbursed for this expense, probate typically takes 6-12 months to complete. Hence, repayment of the $50 is by no means immediate. This bill would allow the custodian to shift the responsibility of lodging the will to the executor or beneficiary, parties who have a greater financial interest in seeing the will lodged and probated. Yes, humans are motivated by financial considerations. Shocking I know. 

It is probably that this bill will pass given that there is no opposition on file and is sponsored by the Trusts and Estates Section of the State Bar of California. Still, only time will tell if this bill becomes law. So please do not assume that AB-2166 is current law.

Revoking a Will

When a person revokes a will, it is prudent to dispose of the old will. Out with the old and in with the new as the old adage goes. The obvious reason being is that problems can arise if the testator passes away and the 2 ostensibly valid wills are floating around. One person might find the earlier will and then petition for probate under the impression that the will is valid. Another person might find the later will and think that their will is valid as well. Such is the exact scenario of a recent court case originating from Contra Costa County Superior Court, Case # MSP0900615. Suffice to say, I was surprised to read such a peculiar situation.

On January 28, 1997, the late Daniel Bridges executed a will, written by his attorney John Busby, which named Kim Brumleve as the executor and a beneficiary. Following the will's execution, attorney Busby placed such in his will drawer. On September 28, 1997, Mr. Bridges revoked his prior will and wrote a new will that named Renee Hansen as the executor and a beneficiary. Yet attorney Busby mistakenly filed this second will in another folder. Consequently, the January Will was never properly disposed of because the September Will was not placed in the same file.

On April 10 2009, Mr. Bridges passed away. Attorney Busby then retrieved the January Will from his files so that probate could commence. Since the will was seemingly valid, letters testamentary were issued and Ms. Brumleve was appointed the executor on July 9, 2009 by the probate court in Contra Costa County. However in May 2011, Ms. Hansen located the September Will that named her as the executor and a beneficiary. Consequently, she too petitioned for probate and letters testamentary. Such was the beginning a very lengthy litigation battle.  If protracted trust litigation piques your interest, the unpublished opinion can be found on Google Scholar and the California Court of Appeal's website, Case # A137168, Hansen v. Brumleve.

What I found fascinating about the case was that an apparently innocuous oversight, i.e. the misplacing of the will, caused this entire case. A mole hill had mushroomed into a mountain as the opinion detailed the numerous hearings that had been held over the years. However, I should mention that Ms. Brumleve did not appeal the validity of the second will. Rather she appealed the trial court's decision to surcharge her for misuse, conversion and waste of estate assets. Still, the genesis of the entire case was the result of a misplaced will. 

Change to Intestate Succession Law

California Legislature - Sacramento, CA

If a person does not write a will, they die intestate and his or her estate is distributed to their heir(s). This is known as intestate succession. Of note, the term "heir" is essentially next of kin. For example, the heirs of a widow would be her children, if she had any.

One reason why it is prudent to write a will, is to prevent the application of intestate succession. Adherence to the laws of intestate succession are rather strict. If the heir was loved or loathed by the decedent, this person will inherit their estate. Still, California law was recently amended to prevent the ostensible unfairness of intestate succession in one instance. AB-490 modified the law of intestate succession in case of an absent parent. See Prob C § 6452. This law went into effect on January 1, 2014. What spawned this law was the following case and its unfortunate result.

Estate of Shellenbarger (2008) 169 CA4th 894    

Lesley Shellenbarger was the son of Clifford Shellenbarger and Laura Barnes. Lesley was conceived while Clifford and Laura were married but during Lesley's pregnancy, Clifford left Laura. Lesley died intestate in April 2005. Probate proceedings commenced in Ventura County thereafter.

Since Lesley passed away without a spouse, child, etc., Laura was appointed administrator of Lesley's estate. During the probate proceeding, Lesley filed a petition to determine entitlement to Lesley's estate, arguing that since Clifford had abandoned his son, Clifford should be barred from inheriting from Lesley's estate as an intestate heir. See Prob C § 11700. 

The trial court and later the court of appeal ruled that Clifford's abandonment was not fatal to his claim. Since Clifford was married to Laura at the time of Lesley's birth, Clifford was the natural parent of Lesley. Furthermore, since Clifford's parental rights were not terminated during Lesley's minority, he remained the natural parent and therefore, per the old version of Prob C § 6452, qualified as an intestate heir. This allowed Clifford to receive a portion of Lesley's estate. This despite the fact that Clifford had neither fully paid child support nor seen his son during his 42 years of life.

Still, as consistently stated in various court opinions "the Legislature remains free to reconsider the matter and may choose to change the rules of succession at any time." Estate of Griswold 108 Cal.Rptr.2d 165, 191 (2001). The California Legislature subsequently did take it upon themselves to alter an intestate succession law. Prob C § 6452 was modified such that a parent that basically abandons their child is barred from inheriting from the child as an intestate heir. This modification to Prob C § 6452 would have reversed the outcome in Estate of Shellenbarger because Clifford had abandoned his son Lesley. Thus in a hypothetical world that adhered to the modified version of Prob C § 6452, solely Laura, instead of Laura and Clifford, would inherit from Lesley's estate.