Opinion
B226261
12-07-2011
Estate of JACK RICHARDS, Deceased. JAMES DUFFER, Petitioner and Appellant, v. NEIL RICHARDS et al., Contestants and Respondents.
James Ellis Arden for Petitioner and Appellant. Schott P. Schomer; and Jack I. Esensten for Contestants and Respondents.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BP113558)
APPEAL from an order of the Superior Court of Los Angeles County, Reva G. Goetz, Judge. Affirmed.
James Ellis Arden for Petitioner and Appellant.
Schott P. Schomer; and Jack I. Esensten for Contestants and Respondents.
Appellant, James Duffer (Duffer), appeals the probate court's order denying his petition for probate of wills and for letters testamentary of the estate of Jack Richards (Richards). Relatives of Richards contested admission of the purported wills into probate on the grounds of, among other things, lack of due execution and fraud.
On appeal, Duffer claims the probate court erred by refusing to probate Richards' will given the proof he offered that Richards signed the will in the presence of two witnesses, the court misapplied the burden of proof, the court prejudged the issue before the hearing, and denying probate flies in the face of longstanding presumptions against intestacy, favoring the intent of the testator and the presumption of due execution. As explained herein, substantial evidence presented during the proceedings below supported the order denying admission to probate the wills offered by Duffer. Accordingly, we affirm.
FACTUAL AND PROCEDURAL SUMMARY
The Parties
Jack Richards died on October 2, 2008, at age 90. At the time of his death, Richards was survived by a daughter (Elizabeth Gay), three grandchildren from a predeceased son (Neil Richards, Craig Richards and Kimberly Richards), and a brother (George Richards). James Duffer was a tenant of Richards and lived in the upper unit of a five-unit Manhattan Beach residential property owned by Richards and where Richards also resided.
At issue is the validity of two documents entitled "Last Will & Testament of Jack Richards" - one document bearing the purported signature of Richards but not witnessed, the other document bearing signatures of two witnesses but not the signature of Richards. Also at issue is whether Richards actually signed one of the documents.
The Wills and Probate Proceedings
On November 7, 2008, Duffer filed a Petition for Probate of Will attaching a copy of a typed document allegedly executed by Richards on September 4, 2008. Duffer also petitioned the court for letters of administration naming himself as executor. The initial document submitted by Duffer was a four-page document entitled "Last Will & Testament of Jack Richards" and passed the bulk of Richards' estate to Duffer. The only signature on this typed document purportedly belonged to Richards. The document contained no witnesses' signatures. This purported will provided in part as follows: "I give, devise, and, bequeath my remaining and entire estate, real and personal property wheresoever situated as follows: [¶] 1) TO GEORGE RICHARDS as my brother $100,000.00; [¶] 2) TO ELIZABETH GAY as my daughter $50,000.00; [¶] 3) TO WALT GLIUSHKO 10% (ten percent) of my remaining estate after the deduction so provided to and for my brother; (Walt Glushko [sic], has for the remaining years of my life provided endless and countless hours, time and effort in the property management of all my Real property and has made my way of life much more comfortable); [¶] 4) TO JAMES DUFFER all of my remaining estate after the deductions so provided to and for my brother and Walt Glushko [sic]; (James Duffer has for the remaining years of my life been my medical and personal caretaker, ensuring that all of my medical and personal needs have been taken care of and has provided numerous time and effort making my way of life much more comfortable and easy)."
On November 17, 2008, Richards' daughter Elizabeth Gay filed a competing petition to probate the estate intestate and also filed objections to Duffer's petition.
On December 17, 2008, the competing petitions and objections were heard and the probate court pointed out the document lodged by Duffer contained no witness signatures. Counsel for Duffer assured the court she had filed Richards' original will with proper witness signatures. Based on counsel's representations, the court made a verbal order granting Duffer's petition, denying Elizabeth Gay's competing petition and overruling objections. However, the document lodged and stamped "REC'D" (but not file stamped) by counsel for Duffer on December 16, 2008, the day prior to the hearing, was a second four-page document entitled "Last Will & Testament of Jack Richards." The third page of this second document, providing for testator's signature, was not dated and contained no signature. Page four of the second document contained a customary attestation clause bearing a date of September 4, 2008, and had the signature of two witnesses - John S. Wolever and Susan Lofstrom.
On January 28, 2009, the probate court issued its minute order as follows: "Upon review of the two wills submitted by [counsel] on behalf of James Duffer the court does not find that a properly executed Will has been lodged with the court and no Will has been admitted to probate. Based upon the necessary review related to the Will the court issues the following orders: [¶] 1. The Orders made on December 17, 2008 are vacated and both Petitions are restored to the calendar. [¶] 2. Mr. Duffer shall act as Special Administrator for the limited purpose of managing the real properties belonging to the estate. [¶] 3. Bond is set in the amount of $1,000,000. [¶] 4. The court sets the matter for setting a hearing regarding the validity of the two wills lodged with the court on February 27, 2009 at 8:30 a.m."
On February 27, 2009, contestants Neil Richards and Craig Richards, as the grandchildren of Richards, filed a contest and grounds for opposition to probate of the purported wills filed by Duffer. On April 13, 2009, Neil and Craig Richards filed a first amended contest and grounds for opposition to probate of the purported will in which it was asserted (1) this document was not properly executed under Probate Code section 6110, (2) the handwriting on the purported will was not made by decedent (fraud by forgery); (3) if decedent's signature is on the purported will, the signature was procured by fraudulent activities including misrepresenting the effect or terms of the document he allegedly signed; (4) lack of testamentary capacity to execute the purported will; (5) invalid gift to disqualified parties because the purported will provides bequests to Duffer and to Walt Gliushko as personal caretakers; and (6) undue influence.
On June 15, 2009, Duffer filed his response to the first amended contest denying the allegations set forth in the contest citing Probate Code section 6110 requirements and the deposition testimony of the two witnesses. On September 22, 2009, counsel for Duffer filed proof of subscribing witness forms executed by John S. Wolever and Susan D. Lofstrom as well as declarations from them regarding the circumstances of execution of the will. The matter was continued several times. On June 1, 2010, the two-day trial commenced. Duffer testified as did the two witnesses and Duffer's own handwriting expert.
Testimony at trial
James Duffer
Duffer testified he met Jack through his friend Walt Gliushko whose profession "is finding places for people to live, either single or roommates [and] his company is called Walt Roommates Finder, but he also does single occupancy dwellings." Duffer became Jack's tenant in the same building Jack owned and occupied. Duffer was Jack's tenant for five years. He took Jack to the doctor on two occasions and was just Jack's friend. Jack had caretakers and one in particular named Bill Saltillo "would yell at [Jack] and seemed to be very, very abusive, arguments that I could hear yelling and screaming." The last car Jack had was a Volkswagon and "Bill tried to steal it after Jack passed away." Duffer testified he "stopped [Bill] from taking the car [and] [Bill] required $2,000 to leave."
Duffer further testified Jack fell and broke his hip in September 2008 and Jack was taken to the hospital. While in the hospital Duffer arranged for a notary to come to the hospital so Jack could execute a power of attorney, and Duffer could not recall if he (Duffer) procured the power of attorney form. After Jack's death, Duffer looked through the papers in Jack's apartment and came upon the first document identified as Richards' Last Will and Testament. He turned this document over to his (Duffer's) attorney. Duffer put the rest of the other papers into boxes and delivered them to his (Duffer's) accountant. Thereafter, Duffer claims the contents of the boxes were sorted by the accountant's staff. When Duffer reviewed these other papers he discovered four disconnected papers also identified on the first page as Richards' Last Will and Testament. Duffer then delivered the second testamentary instrument to his attorney. Duffer realized he was a beneficiary under the will as well as George Richards, Elizabeth Gay and Walt Gluishko. The first time Duffer learned Jack had a daughter was "when the police came to the building and said where is - something about Jack's whereabouts. I told them that Jack had passed away. The Torrance Police Department told me they received a call from a person named Elizabeth Gay from Australia that said she was his daughter. And I told them I don't believe he had a daughter." Furthermore, Duffer claimed he was familiar with the language in the will announcing that Elizabeth Gay was his daughter but he believed that was a lie. Duffer claimed he never saw the purported will prior to Jack's passing, the two wills were not together, and he saw no indication the two documents were ever stapled, paper-clipped or in a common folder.
Witnesses Susan Lofstrom and John Wolever
At trial both witnesses to the disputed will, Susan Lofstrom and John Wolever, testified. Susan Lofstrom claimed to have observed Richards execute one document. She testified after Richards signed his one page, he gave a different page to John Wolever, then John gave it to her and she signed it. After she signed the single witness page she set it back down on Jack's coffee table. On cross-examination counsel for contestants asked Susan if the paper she signed was the same color as the other pieces of paper. Susan testified she could not recall. Her testimony at trial differed from her deposition testimony wherein she indicated she saw Richards sign a piece of paper that was the same color as the other pieces of paper. Susan also testified she did not read this will prior to Mr. Richards' death, Mr. Richards never told her who he was leaving his estate to, she had no way of identifying the first three pages of the will, and she did not know what happened to the will after she left.
John Wolever testified that on September 4, 2008, he stopped by Duffer's apartment in Manhattan Beach, their friend Susan was standing in the doorway, Jack Richards came out of his apartment and asked John and Susan to sign some papers as witnesses. Jack Richards first signed the will and found another piece of paper which was the signature page and John Wolever signed the witness page. He further testified the color of the paper he signed was "creamy manila color" and the pages "were all this same" color. When presented with the two purported will documents at trial, John admitted the two documents were "different colors."
Expert Howard C. Rile Jr.
Howard C. Rile Jr., a forensic document examiner retained by Duffer, testified as an expert that he examined the signature on the first document. His evaluation of the signature was based on standards developed by the American Society of Testing Material with a nine-point scale for evaluating signatures. He testified at one end of the scale, a "one" would be a positive opinion that the person indeed executed the questioned document. On the other end, an opinion of "nine" is a definitive conclusion the person did not execute the questioned document. In between, the scale offers an option of "five" or a conclusion the examiner could not determine the questioned document contained a particular person's signature. Mr. Rile's opinion was that it was as likely as not that decedent or someone else executed the first document.
The parties stipulated to the training, expertise, and qualifications of Mr. Rile.
In particular, Mr. Rile noted a number of substantial irregularities including the signature on the first purported will was significantly smoother and far superior than any of decedent's known signatures. He stated "the questioned signature was written with a higher skill level than reflected on the exemplars." Mr. Rile also looked at the staple hole patterns of the various pages and found anomalies, the printing process suggested ink jet printing for pages 2 and 3 but he did not see that same characteristic printing process for page 1. He noticed the decedent's first name was misspelled J-A-H or J-O-H although he also testified "people sometimes will misspell their name." Mr. Rile also noted the paper on this first will was on "unusual" "card stock" type of paper that is "thick" and there was a "purported signature on page 3, and no witnesses on page 4."
The second four-page document Mr. Rile examined was on specialty paper referred to as "parchment paper." Page 3 did not have a signature for Jack Richards "whereas, on page 4, it is dated, and there are two witness signatures on it." The "04 Sept" date on the witnesses' signature page of the second will appeared to have been written by "a different writer than the partial date on page 3 of the card stock will." Mr. Rile's opinion included three possibilities: "one, he wrote it, and it looks like it's in an unusual manner. [¶] Two, somebody else wrote it and didn't know what his signature looked like. [¶] And, three, someone wrote it, but did know what his signature looked like and didn't write and determine his manner."
Lynne Variano, was contestants' expert. She did not testify because the probate court ruled Duffer failed to meet his evidentiary burden for admission of the disputed wills. If Duffer had overcome his initial evidentiary burden, contestants were prepared to present additional evidence to challenge the validity of the disputed wills. Ms. Variano opined in her report (filed as part of the joint trial exhibits), "the will itself is questionable . . . the same person who signed the known exemplars [of Jack Richards] did not sign the will." Mr. Rile had an opportunity to review Ms. Variano's expert report and commented on the report during his testimony.
Probate Court Findings
Based on the evidence and following closing arguments, the court granted the will contest and did not admit the documents into probate as the will of Jack Richards. The court found "the purported will does not qualify as a valid will under the requirements of the California Probate Code based on the fact that it won't qualify as a holographic . . . document; and that under . . . Probate Code section 6110, subsection c2, it says 'if a will was not executed in compliance with paragraph 1, the will shall be treated as if it was executed in compliance with that paragraph if the proponent of the will establishes by clear and convincing evidence that at the time the testator signed the will, the testator intended the will to constitute the testator's will.' [¶] And the problem is that it hasn't been established by clear and convincing evidence that the testator signed the will." Duffer appeals this ruling.
Contentions
Before this court, Duffer contends (1) the probate court prejudged the will contest; (2) the order denying probate runs afoul of several presumptions in the law favoring probate and militating against intestacy; (3) the probate court misconstrued Probate Code requirements by requiring Duffer to establish by clear and convincing evidence not just the intent of Jack Richards in signing the will but of all circumstances of the signing of the will as well, (4) the handwriting expert's testimony was inconclusive; and (5) Jack Richards' will was validly executed even though some papers may have looked different. We address these contentions in turn.
DISCUSSION
Standard of review
The question of due execution of a will is one of fact, and the probate court's finding will not be reversed on appeal if there is any substantial evidence to sustain it. (Estate of Fletcher (1958) 50 Cal.2d 317, 320.) Under the substantial evidence rule, we construe the evidence in the light most favorable to the prevailing party, resolving conflicts in favor of the probate court's decision. "In resolving the issue of the sufficiency of the evidence supporting the trial court's findings, our power begins and ends with the determination as to whether there is any substantial evidence, contradicted or uncontradicted, to support the finding of fact." (Robinson v. Pediatric Affiliates Medical Group, Inc. (1979) 98 Cal.App.3d 907, 910.) The rules of evidence, weight to be accorded the evidence, and the province of a reviewing court, are the same in a will contest as in any other civil case. In reviewing the evidence, all conflicts must be resolved in favor of the judgment, and all legitimate and reasonable inferences indulged in to uphold it. (Estate of Teel (1945) 25 Cal.2d 520, 526-527.) The appellate court must consider the whole record and defer to the determination of the trier of fact as to the weight and credibility of witnesses and evidence. When two or more inferences can be reasonably deduced from the facts, the reviewing court is without power to substitute its deductions for those of the trial court. (Ibid.)
Substantial evidence supports the probate court's finding there was no valid will
Before this court, Duffer claims the probate court erred in refusing to admit into probate the 2004 will of Jack Richards. Specifically, Duffer maintains Richards signed the will in the presence of two witnesses, both of whom signed as witnesses and testified they understood they were witnessing the signing of decedent's will.
The court expressly rejected Duffer's contention that Jack Richards signed the will. The probate court stated "the problem is that it hasn't been established by clear and convincing evidence that the testator signed the will." One of bases for the court's conclusion was that "the testimony of Mr. Rile who as the proponent of the wills expert -expert witness can at best say that his opinion is inconclusive that Mr. Richards signed exhibit 1, the original of exhibit 1 [the will]. . . . And it's apparent that the distinctions between the two signatures are significant enough that inconclusive - can in no way, shape, or form be extended to come close to clear and convincing. There are significant difference[s] in the signatures."
In reviewing the evidence in the light favorable to respondents, Mr. Rile's testimony in itself supports the court's finding the purported will was not executed by Mr. Richards.
The probate court did not misconstrue Probate Code requirements
Duffer argues Probate Code section 6110 regulates the execution of wills and the court misconstrued that section as requiring clear and convincing proof of not just that specified in subdivision (c)(2) which concerns testator intent, but subdivision (c)(1) as well describing witness duties. Duffer's argument is essentially a request that we reweigh the evidence or reassess the weight or credibility of testimony and assumes Richards actually signed a will or intended the testamentary disposition offered by Duffer. This we decline to do under the standard of review noted above. The burden of proof describing witness duties does not change the outcome here.
Probate Code section 6110 states:
"(a) Except as provided in this part, a will shall be in writing and satisfy the requirements of this section.
"(b) The will shall be signed by one of the following:
"(1) By the testator. . . .
"(2) In the testator's name by some other person in the testator's presence and by the testator's direction.
"(3) By a conservator pursuant to a court order to make a will under Section 2580.
"(c)(1) Except as provided in paragraph (2), the will shall be witnessed by being signed, during the testator's lifetime, by at least two persons each of whom (A) being present at the same time, witnessed either the signing of the will or the testator's acknowledgment of the signature or of the will and (B) understand that the instrument they sign is the testator's will.
"(2) If a will was not executed in compliance with paragraph (1), the will shall be treated as if it was executed in compliance with that paragraph if the proponent of the will establishes by clear and convincing evidence that, at the time the testator signed the will, the testator intended the will to constitute the testator's will."
Furthermore, neither of the disputed wills advocated by Duffer satisfy the requirements of Probate Code section 6110 since the first disputed will was not witnessed and the second disputed will was not signed by the testator. Full compliance with statutory conditions is necessary to the validity of any will. "Statutory requirements must be strictly followed in the execution of a will, and the testator's intention is not required to be considered in determining whether such requirements have been met. [¶] Even rules of liberal construction do not permit us to ignore clear and explicit statutory requirements." (Estate of Mangeri (1976) 55 Cal.App.3d 76, 83.) "[T]he formalities prescribed by the Statute of Frauds and subsequent Wills Acts are not mere formalism. They serve very basic and necessary purposes. If a document has been executed with the usual testamentary formalities, a court can be reasonably certain that it was actually executed by the decedent; that it was seriously intended as a will; what its contents are; and that the testator was free from at least immediate duress at the time of its execution." (Estate of Brown (1985) 171 Cal.App.3d 1064, 1068.)
Here, there were no witnesses who knew how the disputed wills were prepared. The disputed wills were allegedly prepared just weeks before the death of a frail 90-year-old. The disputed wills contain a number of mistakes and were not found together. The first disputed will was on cardstock paper, allegedly signed by decedent, was not witnessed and was stapled and restapled giving a possible indication pages were switched and changed. The second disputed will was not signed by decedent and was on parchment paper, significantly different paper than the cardstock paper used in the first disputed will in terms of paper color, printing and ink. As such, the probate court properly rejected the purported wills.
Duffer's argument the court must combine the disputed wills and read them together also fails. "In the laws of wills, integration . . . occurs when there is no reference to a distinctly extraneous document, but it is clear that two or more separate writings are intended by testator to be his will." (In re Estate of Wunderle (1947) 30 Cal.2d 274, 280.) To find integration there must be some evidence testator intended multiple documents be combined to constitute a single will. The evidence here is overwhelming that no such factors are present. The disputed wills were not found together and were never folded or stapled together. They were not printed at the same time on the same machine, nor were they printed on the same type of paper. None of the assurances necessary to integrate two documents into one for purposes of making decedent's will exists here. In addition, the probate court could not draw upon observations of the witnesses. Neither Ms. Lofstrom nor Mr. Wolever read the substance of the wills, they could only recognize their signatures, and both testified the will was uniform in color. "What documents go to make up a will must necessarily be determined in the first instance on application for probate; and determinations so made have the effect of judgments and become conclusive in the course of time." (In re Estate of Salmonski (1951) 38 Cal.2d 199, 207.) As such, factual determinations, made by the probate court here are not to be disturbed when supported by substantial evidence.
Significantly, Duffer overlooks the analysis and testimony of his own handwriting expert who opined the only way decedent could have executed the first disputed will was if decedent had created an unusual and significantly improved version of his own signature and the expert was unable to conclude decedent actually signed the disputed will. "[I]t must appear that the decedent intended to make a testamentary disposition by that particular paper [or papers], and if this cannot be shown it is immaterial that his testamentary intentions were [or would have been] in conformity with it." (12 Witkin, Summary of Cal. Law (9th ed. 1990) Wills & Probate, § 213, p. 251, italics in original.)
The Probate Court did not prejudge the will contest
Duffer contends the probate court prejudged the will contest before it heard testimony at trial and all of the evidence. Duffer is mistaken. Duffer references comments made by the probate court as follows: "I have a problem with the will that you offered for probate. So there are some real issues here." And, "I am really putting your feet to the fire. I cannot - I am troubled by the will when it was submitted to the court, lodged with the court. It wasn't lodged in one piece. There are so many problems with [this] case . . . . Very strange. This is not the normal way that I would be dealing with this kind of a request [for possible continuance,] but in this case, there [are] too many questions in my mind about what the real situation is."
A review of the record shows Duffer was accorded a full and fair hearing including cross-examination conducted by his own attorney. Remarks of the judge were in an effort to expedite the hearing, the administration of the estate and to avoid unnecessary delay and expense. We find no prejudicial error nor denial of due process in any remarks or rulings.
Presumptions in the law favoring probate and militating against intestacy
Duffer contends the probate court's decision denying probate runs afoul of several presumptions in the law favoring probate and militating against intestacy. Duffer states "Courts are much more inclined to uphold a proffered will, so as to give effect to decedent's right to dispose of property as he or she chooses" and "since the only will found for Jack Richards is the will at issue in this case, the effect of the order denying probate of his will is to deem the Decedent to have died intestate notwithstanding that he made a will to avoid intestacy." Duffer's arguments fail because although there may be presumptions in the law, those presumptions may be rebutted by the contestants. Here, Duffer failed to present evidence or a single document that would constitute a valid will. Duffer also ignores longstanding statutory requirements. Indeed upon a renewed examination of the facts pertinent to the issues presented, the presumptions in the law favoring probate are inapplicable in this case.
In sum, the authenticity of the signature of Richards was an issue of fact for the court to determine. Even assuming Duffer was able to overcome the testimony of his own expert as to the uncertainty regarding the genuineness of Richards' signature, neither of the two disputed documents satisfy statutory requirements for a valid will. It is clear from the record in this case, the ruling of the probate court was supported by substantial evidence.
DISPOSITION
The probate court's order denying the petition is affirmed. Respondents are to recover their costs on appeal.
WOODS , J.
We concur:
PERLUSS, P. J.
ZELON, J.