Estate of MaryLou Olsen Boyle

Case Number

25PR00489

Case Type

Hearing Date / Time

Tue, 11/18/2025 - 09:00

Nature of Proceedings

Petition for Probate and Letters Testamentary

Tentative Ruling

Probate Notes:

The following must be submitted:

Proof of Publication.  The Proof of Publication is defective, because it does not include a notification that admission of a will to Probate is being sought.  It appears this is a result of that request not being indicated at paragraph 4 of the Notice of Petition to Administer the Estate.

Jurisdiction of the Probate Court is obtained by publication in accordance with Article 3 of Division 7, Part 2, Chapter 2 Probate Code.  (Prob. Code, § 8003(b).)

Publication requires the notice to be published in a newspaper adjudicated as a newspaper of general circulation in the city of decedent’s residence (Prob. Code, §§ 8121, 7122) and to contain the substantially same language and format shown in Probate Code section 8100.

Duties and Liabilities Acknowledgement (Form DE-147).  The proposed personal representative must fill out and sign this form and submit it to the court. (Prob. Code, § 8404.)  No such form was submitted.

Trust Instrument.  The Petition and/or accompanying documents reveal the existence of a trust. A copy of the trust, and all accompanying amendments, must be submitted for review, to ensure compliance with the Decedent’s testamentary intent and notice to individuals who might otherwise not be given notice. (Local Rule, 1791(c).)

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, 8220(b), and 8221(b)(1) [must contain attestation clause of witnesses 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.  The persons who attest to the execution of the will in this case are not signatories to the will.

Evidence of Decedent’s Intent.  Decedent’s will is not self-proving, because there is no affidavit of subscribing witnesses containing a statement that they witnessed the testator sign the will in their presence and in the presence of each other.

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).

This does not defeat the admission of the will to probate, but supplement is required to meet the evidentiary standard in Probate Code section 6110(c)(2).  The supplement should point to evidence that meets the clear and convincing standard, an example of which is found in Estate of Ben-Ali (2013) 216 Cal.App.4th 1026, 1037, which includes, but is not limited to the following:

• Age when Decedent allegedly executed the will.
• Witness knowledge of the will or the circumstances of its execution.
• Evidence Decedent spoke about testamentary intentions with anyone, or mentioned the will to anyone after execution of the will and prior to death.
• Testimony as to how the typewritten will had been prepared, who had drafted it, or who Decedent might have consulted with about its terms or phrasing.
• Location of the original copy of the will when found, and whether it was among Decedent’s belongings.

Supplement to the Petition.  A supplement to the petition listing deceased spouse and date of death must be submitted (Pet. at ¶8.)  Paragraph 8 of the petition specifically requires listing even deceased heirs.  The Court has discretion to require service to these heirs pursuant to Probate Code section 1202.

Proposed Order (Form DE-140).  A proposed order must be submitted with relief that matches that requested in the petition.  No such document was filed with the court.

Proposed Letters (Form DE-150).  Proposed letters must be submitted with relief that matches that requested in the petition.  No such document was filed with the court.

If the documents curing these deficiencies are not processed by 8:00 a.m. on November 17, 2025, 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.

 

Due to staffing limitations, processing times may be delayed. To assist in processing, attorneys and parties should include the next court date in the “Filing Description” field provided by the electronic service provider. That field is also used for further descriptions of the document being e-filed, so be sure to put the calendar date FIRST in the field – BEFORE any further description of the document being e-filed (e.g.: 06/28/16 For XYZ).