Estate of Lois J Bolden

Case Number

24PR00084

Case Type

Hearing Date / Time

Wed, 04/24/2024 - 08:30

Nature of Proceedings

Petition for Probate and Letters Testamentary

Tentative Ruling

Probate Notes:

Appearances required.  The following defects are noted for the Court:

Improper request in Amendment.  Counsel for Petitioner conspicuously amended the petition to change the request for relief from a request to admit a known will to Probate and issuance of Letters Testamentary (i.e. a testamentary estate) to a request that expects the Court to ignore a known will and issue Letters of Administration (i.e. an intestate estate).  The Court should deny this request as void against public policy, if the proffered will can be proven up and admitted to Probate.

The general rule is that “A petitioner cannot suppress a will before it is offered for probate, nor can he bring about the same result by withdrawing his petition after the will is offered for probate.”  (In re Raymond's Estate (1940) 38 Cal.App.2d 305, 308.) 

In addition to that general rule, there are several public policies that are violated when a known will is ignored.

It is well settled that the role of the Superior Court sitting in Probate is to honor the intent of the testator: 

The intention of the transferor as expressed in the instrument controls the legal effect of the dispositions made in the instrument.’ (§ 21102, subd. (a).) ‘ “The paramount rule in the construction of wills, to which all other rules must yield, is that a will is to be construed according to the intention of the testator as expressed therein, and this intention must be given effect as far as possible.” [Citations.]

(Estate of Smith (1998) 61 Cal.App.4th 259, 271.)  This policy is so strong, that the 1982 major revision to the Probate Code was for the express purpose “to carry out more effectively the intent of the decedent who dies leaving a will.” (Estate of Duke (2015) 61 Cal.4th 871, 882 [citing Tentative Recommendation Relating to Wills and Intestate Succession (Nov. 1982) 16 Cal. Law Revision Com. Rep. (1982) p. 2305].) 

One of the additions to the Probate Code made during the 1980s revisions later became what is currently Probate Code section 8200, which reflects the strong public policy of honoring a testator’s intent by requiring the custodian of a testator’s will to deliver the will to the clerk of the Superior Court within 30 days of learning of the testator’s death (Prob. Code, §8200(a)), and making that custodian liable for all damages that occur if the will is not delivered (Prob. Code, §8200(b)).  Another relevant Probate Code section that reflects the Court’s paramount duty to honor the intent of the testator, is section 11604, which gives the Superior Court authority to review any distribution that transfers a beneficiary’s share of an estate to another.

Thus, when a known will is either lodged or filed with the Court, the Court cannot ignore the testamentary intent contained in that will, without violating the public policy that the intent of the testator is supreme.

Ignoring a lodged or filed will also violates two other important public policies. The second is to discourage litigation. (Donkin v. Donkin (2013) 58 Cal.4th 412, 422 [no contest clauses upheld to promote public policies of honoring the intent of the donor and discouraging litigation].)  The third is to protect the legal rights of the heirs in the estate. (In re Erwin's Estate (1953) 117 Cal.App.2d 203, 204; Estate of Hearst (1977) 67 Cal.App.3d 777, 784 [“protection of beneficiaries is one of the justifications for court jurisdiction over a testamentary trust”].)

Title to property vests in a devisee upon the very moment of death:

The estate vests in the heir eo instante upon the death of the ancestor; and no act of his is required to perfect title. The estate is cast on the heir by operation of law without regard to his wishes or election. No assent or acceptance is necessary. He cannot, by any act, cause the estate to remain in the ancestor, for the latter is incapable of holding it after his death. He cannot, by any renunciation or disclaimer, prevent the passage of title to himself.

(In re Estate of Meyer (1951) 107 Cal.App.2d 799, 810.  See also Parr v. Reyman (1932) 215 Cal. 616, 619 [““The probate court has jurisdiction to determine who are the legal heirs of a deceased person who died intestate, and who are the devisees or legatees of one who died testate; but its determination of such matters does not create any new title. It merely declares the title which accrued under the law of descents, or under the provisions of the will.”].)

Thus, if this Court ignored the known will on file, it would encourage future litigation by any person entitled to take from it, and place any other’s rights in the decedent’s estate in peril.  This concept is highlighted in Kopasz v Wymer (1953) 118 Cal App 2d 119.

In Kopasz, the plaintiff alleged that a man died leaving a will which gave his wife one–third of his estate, and gave each of two daughters one–third of the estate; that various disputes arose between the widow and one daughter concerning the ownership of property held by the widow in her own name, the daughter evidently contending that such property belonged to the estate; that the two parties executed a contract of settlement which stated that in the distribution of the estate the daughter should receive an amount equal to one–third of the net estate and also one–third of the property listed as the widow's separate property and one–sixth of the net sums recovered by the widow, predicated on the theory that the deceased had unlawfully made gifts of community property; and that the widow refused to perform the contract and died.

The plaintiff sued the estate of the widow for breach of contract. The trial court sustained a demurrer to the complaint, and the District Court of Appeal affirmed the judgment on the ground that the contract was contrary to public policy, saying:

A contract in which one or more parties agree for a valuable consideration to extend or withhold affirmative action as an aid in cutting off the rights of a legatee or devisee or other party not a party to the agreement will not be enforced by the courts because it is against public policy and therefore void..… Applying the foregoing rule to the facts alleged in the amended complaint it is evident that the effect of the agreement between plaintiff and alice Canfield was to provide that plaintiff would get 1/3 of the property listed as the separate property of Alice Canfield which was not actually inventoried in the estate of Lee Canfield and subject to distribution thereunder.

The effect of this agreement would be to deprive Dorothy O. Eastman, one of the legatees under the will of Lee Canfield, and not a party to the agreement, of her interest in the disputed property and likewise to deprive the probate court administering Lee Canfield's estate from properly performing its duties, and deprive the State of California and the United States Government of taxes properly due on said property.

(Kopasz v. Wymer (1953) 118 Cal.App.2d 119, 121.)

Thus, impliedly, a single devisee’s decision to seek intestacy over probate cannot stand if rights of persons not parties to that decision are affected.

Supplement to the Petition re: heirs.  The Amended petition does not contain sufficient allegations to identify the potential heirs in this estate.  When a decedent leaves no issue, and had a predeceased spouse, the predeceased spouse and date of death of that spouse must be listed in the petition so the Court can verify whether the Predeceased spouse’s heirs are subject to Probate Code section 6402.5.  Petitioner must file a supplement to the petition listing the predeceased spouse, with date of death, and list all known heirs to the second degree, even if those heirs are deceased, including persons named in decedent’s will. (Pet. at ¶8.) 

In this case, only petitioner was listed at paragraph 8, and petitioner failed to identify the relationship petitioner holds to the Decedent.  Petitioner also failed to list Susan J. Pollak, who is identified in the will as a successor/contingent devisee of the residue of the estate, should Petitioner fail to survive the Decedent.  Paragraph 8 of the petition specifically requires listing even deceased heirs and contingent devisees, and this Court requires heirs to the second degree.

The Court has discretion to require service to these heirs pursuant to Probate Code section 1202, and since the will’s residual distribution clause indicates the testator’s intent to have distribution follow the law of intestacy if prior contingencies fail, the following is also required:

Proof of Service of Notice of Hearing (Form DE-121).  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.) 

Proof of service, at minimum, must be given to Susan J. Pollak, and any heir in the supplement.

Original Will.  An original will and any codicil to that will must be lodged with the Court. (Prob. Code, §§ 8200, et seq.)  It is insufficient to attach a copy of the will to the petition without lodging the original.

If the original is lost, petitioner must amend the Petition to provide an attachment alleging why the presumption of destruction in Probate Code section 6124 should not apply, or provide evidence overcoming the presumption of destruction.

Petitioner may overcome this presumption with substantial evidence that shows the Court some supported fact that the Decedent did not destroy the will.  Petitioner is referred to the following authority to understand the evidence required to overcome the presumption of destruction in Probate Code section 6124:

• Estate of Trikha (2013) 219 Cal.App.4th 791, 804 [substantial evidence required to overcome presumption]
• Lauermann v. Superior Court (2005) 127 Cal.App.4th 1327, 1333 [Duplicate Original not usually sufficient]

Affidavit of Subscribing Witness.  The will is not self-proving, because it does not meet the requirements of Probate Code section 6110 and 8220(b) [must contain attestation clause under penalty of perjury]. To overcome this defect, Petitioner must submit an Affidavit of Subscribing Witness (Form DE-131), of at least one of the witnesses to the execution of the will.

If the documents curing these deficiencies are not processed by 8:00 a.m. on April 24, 2024, 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.