Estate of Hilario Pineda Trejo

Case Number

24PR00676

Case Type

Hearing Date / Time

Tue, 02/04/2025 - 09:00

Nature of Proceedings

Petition for Will 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:

PROCEDURAL ISSUES

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.

Evidentiary Hearing.  The petition filed by Kyle Perry on November 26, 2024, received objection by Arnold Escobar Trejo on January 31, 2025, which places this matter at issue requiring Evidentiary Hearing to resolve. (In re Estate of Lensch (2009) 177 Cal.App.4th 667, 676; Conservatorship of Farrant (2021) 67 Cal.App.5th 370, 377.)

That opposition contained an objection to the will and to the appointment of the personal representative. 

Due to the objection, the following must be submitted:

Competing Petition. A contest to a petition for administration of a decedent’s estate may involve a contest to the appointment of the personal representative, a contest to the will, or both.

When appointment of a personal representative is contested, Probate Code section 8004 requires a competing petition be filed and served in accordance with Probate Code section 8110 [15 days, mail or personal service to all entitled to take by intestate, and each devisee, executor, and alternative executor].  (Prob. Code, § 8004, subd. (a).)

There is no competing petition on file.  Objector must file a competing petition for letters of administration on form DE-111, before an evidentiary hearing can be set.

Proof of Service of Summons.  When a will is contested, Probate Code section 8250 requires a written objection to probate of the will be filed, and a copy of the objection along with a summons be served to all those entitled to notice listed in section 8110 [all entitled to take by intestate, and each devisee, executor, and alternative executor].  The summons must be served according to the procedures in the Code of Civil Procedure Title 5, Part 2, Chapters 3 and 4 [§ 412.10 et seq].

The petitioning party may file an answer to the objection, or demur, within 30 days after service of the summons.  (Prob. Code, § 8250, subd(a) and 8251, subd. (a).)  If a party fails to respond to a served summons within 30 days, the case is still at issue, but the non-responding party loses the right to further contest the appointment or the will.  (Prob. Code, § 8251, subd. (c).)

EVIDENTIARY ISSUES

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.

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 further 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 a second supplement containing allegations that plainly clarify (without causing ambiguity) the following issue:

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.

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:

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