Estate of Hilario Pineda Trejo

Case Number

24PR00676

Case Type

Hearing Date / Time

Tue, 01/21/2025 - 09:00

Nature of Proceedings

Petition for Probate and Letters Testamentary

Tentative Ruling

Probate Notes:

Personal appearances required. Faren Mitchell and all other available intestate heirs must be present at the hearing (Zoom appearances okay).

After supplement filed on January 17, 2025, the following issues remain and are noted for the Court at the hearing:

Waivers of Bond. Because the will is not self-proving (discussed below), bond must be waived by all adult heirs at law. Petitioner must file bond waivers (Form DE-142) for all heirs and devisees named in a will.

Original Will.  It is unclear whether petitioner is alleging that the will attached to the petition is the original will or a copy.  There is no separately lodged will on filed with the court in this case, or in a lodged will case number. 

A will and any codicil to that will must be lodged with the Court. (Prob. Code, § 6110.)  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.

Evidence of Decedent’s Intent.  Decedent’s will is not self-proving, because the affidavit of subscribing witnesses does not contain a statement that they witnessed the testator sign the will in their presence and in the presence of each other.  The witness statement also does not indicate the testator indicated the will to be his testamentary intent. Further problematic is that the will appears to have been witnessed by only one witness who signed his name twice, in nearly identical handwriting. 

Petitioner filed supplement that claims there are Proofs of Subscribing Witness, but none are on file, nor were attached to the Supplement.

When a will is not self-proving under Probate Code section 6110, it can only be admitted if it is a valid Holographic will under 6111, or if clear and convincing evidence proves the testator intended the will to constitute the testator’s final desire as to the disposition of the testator’s estate, pursuant to Probate Code section 6110(c)(2).  Because the proffered will in this case contains both typewritten and handwritten provisions, notations and interlineations, supplement is required to give the Court sufficient information to determine whether the will should be admitted to probate at all, whether it should be admitted as a single testamentary device, or multiple testamentary devices.

Petitioner must submit supplement containing allegations that plainly clarify (without causing ambiguity) the following issues:

1) Whether the handwritten portions were written by the testator.

2) Whether the handwritten portions existed when the testator executed the will.

3) Whether the handwritten portions of the document were written after the date the testator executed the will.

4) Whether Robert Perry is one witness or two, and whether he is related to petitioner.

5) Why the testator believed Petitioner was his son.  Petitioner must discuss how a mistake of identity of one’s own child does not exhibit a lack of testamentary capacity.  The test of capacity to make a testamentary devise is whether the testator had sufficient mental capacity to be able (a) to understand the nature of his or her act; (b) to understand and recollect the nature and situation of his or her property; and (c) to remember and understand his or her relations to the persons who have claims on his or her bounty, and whose interests are affected by the will.  (14 Witkin, Summary 11th Wills § 136 (2024) [citing (Estate of Smith (1926) 200 Cal. 152, 158; Estate of Powell (1931) 113 Cal.App. 670, 673; Estate of Sandman (1932) 121 Cal.App. 9, 12; Rest.3d, Property (Wills and Other Donative Transfers) § 8.1 [test of capacity].].)  A more moder iteration of the test is found in Probate Code section 6100.5.

A typewritten transcription of the entire document was not attached to the supplement. Because of the hybrid nature of the will submitted. (Prob. Code, § 8002(b)(1)), the handwritten portions must be typewritten and submitted via supplement.

When a will is typewritten but contains handwritten interlineations, the Court is faced with determining whether the handwritten interlineations were meant by the testator to rely upon the typewritten portions of the document to form a single testamentary device, or whether the testator meant the handwritten interlineations to constitute a codicil to the typewritten provisions of the document to form two testamentary devices. (Estate of Sola (1990) 225 Cal.App.3d 241, 246-47.)  If the handwritten portions of the document are meant to constitute a holographic codicil, the statutory provisions of 6111 must be met, and the Court must determine if those handwritten interlineations revoke 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.”  (Id. at p. 247.)  Thus, if the document was not executed in conformance with Probate Code section 6110 to be self-proving, 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 ALSO 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.

It is otherwise recommended the Court find that Decedent died intestate, and reject the will from being admitted to Probate.

Appearances:

The court is open to the public for court business. The court is also conducting hearings via Zoom videoconference.

Meeting ID: 160 543 3416

Passcode: 5053334