Estate of Dennis Antone Vetter

Case Number

23PR00331

Case Type

Hearing Date / Time

Mon, 09/25/2023 - 08:30

Nature of Proceedings

Petition for Probate and Letters Testamentary

Tentative Ruling

Probate Notes:

The following must be submitted:

Supplement re: Proof of Service and Paragraph 8 of the Petition.  Notice must be given 15 days prior to hearing, served on all known heirs and devisees, as well as on the Personal Representative (if not the petitioner) and special notice requestors.  (Prob. Code, §§ 8100 & 8110.) Notice must be sent to the person, not the person’s representative. (§1220.) 

The proof of service does not match the known heirs listed at paragraph 8 of the petition. Specifically, one Constance Marie Cook was served notice of the petition without being identified in the petition as a person/heir entitled to notice. Please submit supplement explaining why Ms. Cook was noticed and her relation to Decedent.

Waivers of Bond. Bond must be waived by all adult heirs at law. Petitioner must file bond waivers (Form DE-142) for all heirs or devisees named in a will.  Because the will is not recommended for admission to probate, all intestate heirs must waive bond.

Hybrid Will.  Decedent’s will is not a California Statutory Will, yet is a fill-in-the-blank document producing multiple handwritten notations and interlineations.  Petitioner must allege whether the will is offered with or without the handwritten portions, and whether the handwritten portions allegedly comprise a codicil to the will.  If the handwritten portions are offered as a holographic instrument alone, a typewritten transcription of the written portions must be submitted.  However, because of the hybrid nature of the will submitted, the entire will should be typewritten. (Prob. Code, § 8002(b)(1).)

When a will is typewritten but contains handwritten interlineations, the Court must first determine whether the handwriting on its own constitutes a holographic will pursuant to Probate Code section 6111.  (Estate of Sola (1990) 225 Cal.App.3d 241, 246-47.)  If the statutory provisions of 6111 are met, the Court can consider the holographic content a codicil (if it makes sense to do so) or consider the holographic content a will in and of itself, thus revoking the typewritten words within the document.  (Ibid. See also Estate of Nielson (1980) 105 Cal.App.3rd 796, 804.) 

However, “[w]here the handwriting in itself lacks testamentary intent and substance and has meaning only in relationship to the typewritten words it relates to, there is no complete testamentary document that can be deemed a holographic will.”  (Estate of Sola (1990) 225 Cal.App.3d 241, 247.)  Thus, the Court must receive sufficient evidence to satisfy the clear and convincing standard in Probate Code section 6110(c)(2), in order to admit the will as is, without discarding either the typewritten or handwritten portions.

THEREFORE, PETITIONER MUST SUBMIT THE FOLLOWING TO PROVIDE CLEAR AND CONVINCING EVIDENCE:

Affidavit of Subscribing Witness. Form DE-131 of at least one of the witnesses to the execution of the will.  The affidavit must contain attestation that the will as presented to this Court is the will that was signed in the subscribing witness’ presence. (i.e. there must be evidence that handwritten portion on the will were not added after the will was executed by Decedent.)

Proof of Holographic Instrument (Form DE-135).  All codicils must be proven in the same manner as a will (Prob. Code, §§ 88, 6110, 8222), and all holographic instruments must be proven by submission of evidence that that the holographic instrument is in fact in the testator’s handwriting.  Form DE-135 must be used to do so.

If the documents curing these deficiencies are not processed by 8:00 a.m. on September 21, it is recommended that the matter be continued to a date to be set by the Court at the hearing, unless the party appears and requests a different date, or submits a request for a different continuance date prior to the hearing. (Local Rule 1721(c)(2)(A-B).) If the matter is continued, documents must be submitted at least 10 days prior to the new hearing date to be considered.

 

Due to staffing limitations, processing times may be delayed. To assist in processing, attorneys and parties should include the next court date in the “Filing Description” field provided by the electronic service provider. That field is also used for further descriptions of the document being e-filed, so be sure to put the calendar date FIRST in the field – BEFORE any further description of the document being e-filed (e.g.: 06/28/16 For XYZ).

Meeting ID: 161 797 5412

Passcode: 8749009