Estate of Sally Lewis

Case Number

23PR00356

Case Type

Hearing Date / Time

Thu, 02/01/2024 - 09:00

Nature of Proceedings

Demurrer re: Petitioners First Amendmed [sic] Petition for Order Determining Owernership [sic] of Estate Property; Pet: Probate Will and Letters of Administration - Will Annexed; Petition: Determine Claim to Property

Tentative Ruling

HEARING:             Demurrer of Respondent to First Amended 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:

The demurrer of respondent Susannah Lewis-O’Dea to the first amended petition of Maggie Thomas for an order determining ownership of estate property under Probate Code section 850 is overruled. Respondent shall file and serve a response to the first amended petition on or before February 16, 2024.

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 and is also attached as exhibit B to the First Amended Property Petition (FAPP).

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 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; FAPP, exhibit B.)

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 original petition for order determining ownership of estate property pursuant to Probate Code section 850 (Property Petition).

Following the sustaining of the demurrer of respondent Lewis-O’Dea to the Property Petition with leave to amend, petitioner Thomas filed her FAPP on December 22, 2023.

The FAPP alleges:

On October 5, 1990, Lewis, settlor and trustee, established the Lewis Family Trust (the Trust). (FAPP, ¶ 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. (FAPP, ¶¶ 2, 3.)

On March 3, 2023, Lewis drafted the holographic will. (FAPP, ¶ 4 & exhibit B.) The holographic will leaves the Property to all four children equally. (FAPP, ¶ 5.) The holographic will “is clear about decedent’s wishes regarding only the family home” and is the most recent version of the decedent’s intent on how she wanted the family home distributed. (FAPP, ¶¶ 11, 13.) The holographic will is valid and controls the disposition of the Property. (FAPP, ¶¶ 10-13.)

Lewis died on March 18, 2023. (FAPP, ¶ 6.)

On January 9, 2024, respondent Lewis-O’Dea filed a demurrer to the FAPP. As in the demurrer to the original 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; and (exhibit C) a quitclaim deed for the Property recorded on January 17, 2017.

The court will take judicial notice of exhibit A as a court record. (See Evid. Code, § 452, subd. (d)(1).) The court will take judicial notice of exhibits B and C as recorded documents. (See Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1117.) “Although the existence of a document may be judicially noticeable, the truth of statements contained in the document and its proper interpretation are not subject to judicial notice if those matters are reasonably disputable. [Citation.] … ‘In ruling on a demurrer, a court may consider facts of which it has taken judicial notice. [Citation.] This includes the existence of a document. When judicial notice is taken of a document, however, the truthfulness and proper interpretation of the document are disputable. [Citation.]’ [Citation.]” (Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 113, italics omitted.)

(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).)

This demurrer to the FAPP asserts the same grounds for demurrer in the demurrer to the original Property Petition. In ruling on that demurrer, the court stated:

“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.” (Minute Order, filed Dec. 14, 2023, at p. 3.)

The court further noted:

“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 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.” (Minute Order, filed Dec. 14, 2023, at pp. 3-4.)

Respondent reasserts her argument that the holographic will cannot as a matter of law constitute a will because it lacks testamentary intent. However, as indicated by the court in ruling on the prior demurrer, it is sufficient to state a cause of action to plead the meaning of an ambiguous instrument. As a matter of pleading, the court cannot conclusively determine that the instrument is not ambiguous and lacks testamentary intent. Ambiguity itself is a function of how people use words: “Words, however, do not have absolute and constant referents. ‘A word is a symbol of thought but has no arbitrary and fixed meaning like a symbol of algebra or chemistry, ….’ [Citation.] The meaning of particular words or groups of words varies with the ‘… verbal context and surrounding circumstances and purposes in view of the linguistic education and experience of their users and their hearers or readers (not excluding judges). … A word has no meaning apart from these factors; much less does it have an objective meaning, one true meaning.’ [Citation.] Accordingly, the meaning of a writing ‘… can only be found by interpretation in the light of all the circumstances that reveal the sense in which the writer used the words.” (Pacific Gas & Elec. Co. v. G. W. Thomas Drayage & Rigging Co. (1968) 69 Cal.2d 33, 38–39.)

The pleading is sufficient to allege intent of the holographic will. The court does not now determine whether, after consideration of the extrinsic evidence, the meaning and effect asserting the petition will prevail. That determination will be left to a procedurally appropriate motion or evidentiary hearing.