Estate of Sally Lewis
Estate of Sally Lewis
Case Number
23PR00356
Case Type
Hearing Date / Time
Thu, 12/14/2023 - 09:00
Nature of Proceedings
Demurrer Re: Petition for Order Determining Owenership of Estate Property; Pet: Probate Will & Letters of Administration - Will Annexed; Petition: Determine Claim to Property
Tentative Ruling
In the Matter of the Estate of Sally Lewis (Judge Sterne) Case No. 23PR00356
HEARING DATE: December 14, 2023
HEARING: Demurrer of Respondent to Probate Code Section 850 Petition
ATTORNEYS: For Petitioner Maggie Thomas: Alexander Saunders For Respondent Susannah Lewis-O’Dea, Trustee: Jana S. Johnston, Lisa Faye Petak, Mullen & Henzell LLP
TENTATIVE RULING: For the reasons set forth herein, the demurrer of respondent Susannah Lewis-O’Dea to the petition of Maggie Thomas for an order determining ownership of estate property under Probate Code section 850 is sustained with leave to amend. Petitioner shall file and serve a first amended petition on or before December 29, 2023.
Background: On July 17, 2023, petitioner Maggie Thomas filed her petition for letters of administration with will annexed (Petition for Probate). The Petition for Probate states that the only asset subject to this probate is the house at 1666 San Leandro, Santa Barbara (the Property). (Petition for Probate, attachment 3.) The will subject to this petition is a holographic will. (Petition for Probate, ¶ 3f(2) & attachment 3f(2).) (Note: Whether the attached document has the legal status of a will is disputed. References herein to a “holographic will” reflect the allegations of the petition and are not intended to suggest any determination of this issue.) A typed version of this holographic will is attachment 4 to the Petition for Probate.
The text of the holographic will is as follows:
“March 3, 2023 “Peggy Barnes-
“I’m having a problem with my daughter Susannah who is living in my house and will not let me come home from the care place I have been living in for weeks. She says she does not want me in my house because I might fall and she would be 2 responsible and she has done her caretaking and does not want me where I might have a problem.
“Please let me know what my rights are. Also I want to change my mind about leaving the house to Susannah as we have done in my will. I would like to change that and leave the house to the four children. [Emphasis in original.]
“I can come to see you or perhaps you could visit me here. It’s called Abundnat [sic] care and the address is
“5421 Berkeley Road, S.B. CA 93111
“My friend will mail this letter for me. Thank you lese let me hear from you. [next page]
“My friend will mail this letter for me. Her name is Rose Andongo, [telephone number]
“Thank you “Sally Lewis” (Petition for Probate, attachment 4.)
Also on July 17, 2023, petitioner Thomas, the daughter of the decedent Sally Lewis, filed her proof of holographic instrument.
On July 26, 2023, petitioner Thomas filed her petition for order determining ownership of estate property pursuant to Probate Code section 850 (Property Petition). The Property Petition alleges:
On October 5, 1990, Lewis, settlor and trustee, established the Lewis Family Trust (the Trust). (Property Petition, ¶ 1.)
On December 16, 2020, the Trust was amended and restated leaving the bulk of the estate to settlor’s daughter, Susannah Lewis-O’Dea, including the Property. (Property Petition, ¶¶ 2, 3.)
On March 2, 2023, Lewis drafted the holographic will. (Property Petition, ¶ 4.) The holographic will leaves the Property to all four children equally. (Property Petition, ¶ 5.) The holographic will “is clear about decedent’s wishes regarding only the family home.” (Property Petition, ¶ 11.) The holographic will is valid and controls the disposition of the Property. (Property Petition, ¶¶ 10-13.)
Lewis died on March 18, 2023. (Property Petition, ¶ 6.)
On September 27, 2023, respondent Lewis-O’Dea filed a demurrer to the Property Petition. The demurrer argues that the holographic will is not a testamentary instrument having the effect of a will.
Thomas opposes the demurrer.
Analysis:
(1) Requests for Judicial Notice
In support of the demurrer, Lewis-O’Dea requests that the court take judicial notice of: (Request for Judicial Notice, exhibit A) a will of decedent lodged with the court on April 11, 2023; (exhibit B) a recorded affidavit of death of settlor/trustee; (exhibit C) a recorded quitclaim deed for the Property; and (exhibit D) the holographic will attached to the Petition for Probate.
The court will deny these requests for judicial notice as unnecessary to the disposition of this demurrer. (See Mangini v. R. J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063.)
(2) Failure to State Sufficient Facts
“Except to the extent that this code provides applicable rules, the rules of practice applicable to civil actions, including discovery proceedings and proceedings under Title 3a (commencing with Section 391) of Part 2 of the Code of Civil Procedure, apply to, and constitute the rules of practice in, proceedings under this code. All issues of fact joined in probate proceedings shall be tried in conformity with the rules of practice in civil actions.” (Prob. Code, § 1000, subd. (a).)
“ ‘The rules by which the sufficiency of a complaint is tested against a general demurrer are well settled. We not only treat the demurrer as admitting all material facts properly pleaded, but also ‘give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.’ ” (Zhang v. Superior Court (2013) 57 Cal.4th 364, 370, internal quotation marks and citations omitted.)
“Because a demurrer challenges defects on the face of the complaint, it can only refer to matters outside the pleading that are subject to judicial notice.” (Arce v. Kaiser Foundation Health Plan, Inc. (2010) 181 Cal.App.4th 471, 482.)
There are two petitions filed under this case number. The filing of petitions under the same case number is a matter of administrative convenience for the benefit of the court and the litigants. As a matter of pleading, absent formal consolidation for all purposes, each petition must stand on its own. (See McClure, on Behalf of Caruthers v. Donovan (1949) 33 Cal.2d 717, 721–722 [where action is consolidated for all purposes, the allegations of various complaints may be taken together and treated as one pleading, but not if consolidated only for trial].)
A petition under Probate Code section 850 “shall set forth facts upon which the claim is based.” (Prob. Code, § 850, subd. (b).) The Property Petition alleges that decedent drafted a holographic will that left the family home to all four children equally, but does not allege the text of the will itself. (Property Petition, ¶¶ 4-5.)
The Property Petition also alleges that the holographic will controls the disposition of the family home. (Property Petition, ¶ 13.) It is not sufficient merely to allege the holographic will in the Petition for Probate. Indeed, the allegations of the Property Petition reference a holographic will of March 2, 2023, whereas the Petition for Probate alleges a will dated March 3, 2023—if this is a typographic error as implied by the papers, that error needs to be corrected so that there is no issue regarding what document is the basis for the Property Petition. It is therefore necessary for the Property Petition to allege the terms of the will specifically in order to assert this petition under section 850.
The demurrer will therefore be sustained with leave to amend on this ground.
The substantive legal issue raised by the demurrer—whether the holographic will constitutes a testamentary instrument having the effect of a will—cannot be resolved at this time. For the guidance of the parties in addressing an amended petition, the court notes that the holographic will alleged in the Petition for Probate may be viewed as ambiguous as to the intent of the decedent.
“The American and English authorities are unanimous in holding that any writing executed with the formalities required for an attested or holographic will and containing posthumous dispositions may, regardless of its form, be given effect as a will. [Citations.] The fact that there are non-testamentary provisions, as here, along with those testamentary, and that the latter are a very small part of the bulk of the document, does not make such small part inoperative as a will. [Citations.] Moreover, while all the courts agree that the writing must be executed with animus testandi, there is nevertheless a difference of opinion as to the manner in which testamentary intent is or may be shown. Where a testamentary intent is clearly deducible from the writing itself and it meets the other formalities required for a will, all the authorities hold there is a presumption of testamentary intent. [Citations.] … Moreover, if the writing is free from ambiguity on its face it may not be shown that the maker thereof intended it to operate as an instrument of a type different from that which on its face it purports to be, except in England and in a few American jurisdictions, of which California is not one. [Citations.] … But if the language of the instrument is ambiguous, so that it is not clear whether the maker did or did not intend the writing to operate as a will, by the great weight of American authority, as well as by English authority, extrinsic parol evidence is admissible to show the fact.” (In re Pagel’s Estate (1942) 52 Cal.App.2d 38, 41–42.)
Because the court may be called upon to construe the terms of an ambiguous document, it is generally sufficient for pleading purposes for a petitioner to plead the intent that the petitioner asserts as an ultimate fact. (See Estate of Kerr (1954) 127 Cal.App.2d 521, 523 [intent of instrument to constitute will an ultimate fact]; Klein v. Chevron U.S.A., Inc. (2012) 202 Cal.App.4th 1342, 1384-1385 [alleging meaning of ambiguous contract sufficient to withstand demurrer].) The present 5 allegation in paragraph 11 that the “holographic will is clear about the decedent’s wishes regarding only the family home” is an allegation about the text of the holographic will and not a sufficient allegation of the decedent’s intent for these purposes.