Estate of Kevin Lee Star

Case Number

23PR00340

Case Type

Hearing Date / Time

Wed, 10/11/2023 - 08:30

Nature of Proceedings

Petition for Probate and Letters Testamentary

Tentative Ruling

Probate Notes:

Appearances required.  The following must be submitted:

Proof of Publication. Jurisdiction of the Probate Court is obtained by publication in accordance with Probate Code section 8121.  (Prob. Code, § 8003(b).)  No proof of publication was filed.  Publication requires the notice to be published in newspaper adjudicated as a newspaper of general circulation in the city of decedent’s residence. (Prob. Code, §§ 8121, 7122.)

Supplement to the Petition.  The following allegations must be made without creating ambiguity, but were left blank or improperly alleged and must be corrected by supplement:

• Paragraph 5a(3) or (4)

The following is noted for the court:

Hybrid Will

Decedent’s will includes 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:

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.

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).