Opinion
B162507.
10-16-2003
Estate of DONALD GILBERT, Deceased. PETER LONSDALE et al., Contestants and Appellants, v. LILLIAN MILLER, Claimant and Respondent.
Hinojosa & Wallet and Lynard C. Hinojosa for Appellants, Peter Lonsdale. Joseph P. Ferry for Appellants Patricia H. Jacobs, Stephen M. Crown, Maurice Antony Kafetz, Diana Alter, Michael Gilbert, Harold Green, Philip Berman, Karen Berman, Marilyn Rose, Lorraine Fogel, Alan Gilbert, Gillian Gilbert Mendelsyzs and Irene Daphne Green. Law Offices of Robert J. Waechter and Robert J. Waechter; Davidson, Russ & Diamond and James A. Diamond for Appellants Sidney Gilbert, Sylvia Turin, Janice Miller, Arline Cohen, Laura Robbins, Alec Miller, and David Marc Miller. E. Joan Nelms for Respondent Lillian Miller.
Certain relatives of Donald Gilbert appeal from the trial courts order granting the petition for probate of will filed by Lillian Miller, Gilberts first cousin, and admitting to probate a holographic instrument found by the court to be Gilberts will. These relatives had contested admission of the holographic will into probate on the grounds that the instrument on its face does not show a present testamentary intent and that Millers petition for probate of the document was barred by the limitations period contained in Probate Code section 8226, subdivision (c).
All statutory references are to the Probate Code.
We reverse.
FACTUAL AND PROCEDURAL BACKGROUND
On November 21, 1978, following the death of his mother, Donald Gilbert wrote the following message on a three inch by five inch note card:
Dear Lillian, 11-21-78
Ive been very depressed — I cant
stop crying for Mom — in my death
Ive left everything to you and the children.
Dont be angry with me.
Love, Don
More than 17 years later — on May 5, 1996 — Gilbert, an only child who never married and had no children, died. Lillian Miller, who had been raised together with Gilbert following the death of Millers mother, was the only beneficiary named on Gilberts life insurance policy and his IRA accounts.
Miller was appointed special administrator of Gilberts estate on June 18, 1996. General letters of administration were issued to Miller on October 15, 1996, and the estate was administered as an intestate estate based on the probate courts finding that "no will has been located for this decedent."
In June 1998 Millers powers as administrator were suspended by the court, and she was ordered to file an accounting following allegations that Miller had improperly handled estate assets. The public administrator was appointed successor administrator of the estate on October 14, 1998.
On September 29, 1998, more than two years after Gilberts death, Miller filed a Petition for Probate of Will and/or Lost Will, attaching a copy of Gilberts November 21, 1978 handwritten note. Peter Lonsdale, also a first cousin of Gilberts, filed objections to the petition, as well as a will contest. Other relatives joined in the objections and contest. While litigation proceeded with respect to the accounting filed by Millers initial attorney, based on objections by the public administrator and other contestants, Millers petition was taken off calendar. The petition was reset on August 22, 2001.
The probate court ultimately surcharged Miller $837,525.
At the two-day hearing conducted by the probate court, Miller testified she recognized the handwriting on the note card to be that of the decedent Donald Gilbert and explained that she had not seen the note card until one of her prior attorneys found it in Gilberts possession. Miller was not asked by either her lawyer or counsel for the contestants when that occurred. Gilberts accountant, who was a long-time friend of the decedent, also identified the handwriting on the note card as Gilberts. Miller also presented the testimony of another friend of the decedents who said that, during dinner with Gilbert two days before his death, Gilbert had stated he had prepared a will taking care of Miller and her children.
On cross-examination by the contestants, Gilberts accountant testified Gilbert had never discussed a will with him, he had never seen the note card prior to Gilberts death and he had no knowledge whether Gilbert had ever prepared a will. The contestants also called one of the decedents "poker buddies," who testified that Gilbert had said two or three times during the six months prior to his death that he did not have a will because he was afraid if he made one he might die.
Following the submission of written closing arguments, the court admitted the holographic document into probate as Gilberts will and denied the will contest. The court found the petition to probate the will had been timely filed and set for hearing and further found "present testamantary [sic] intent on the face of the document. . . . [T]here is no ambiguity in this respect. Therefore, resort to extrinsic evidence was not necessary to show that he did not believe he had made a will."
CONTENTIONS
The contestants contend the probate court erred in admitting the November 21, 1978 handwritten note to probate as Donald Gilberts will because Millers petition was untimely and the instrument on its face does not show a present testamentary intent.
DISCUSSION
1. Standard of Review
We review the probate courts factual determination that Millers petition for probate of will was timely filed under the substantial evidence standard like any other issue of fact decided by the trial court. (See Estate of Auen (1994) 30 Cal.App.4th 300, 311-312.) "In resolving the issue of the sufficiency of the evidence supporting the trial courts 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. [Citations.]" (Robinson v. Pediatric Affiliates Medical Group, Inc. (1979) 98 Cal.App.3d 907, 910.) We do not reweigh the evidence (ibid.); nor do we judge credibility (People v. French (1978) 77 Cal.App.3d 511, 523). We view the evidence in the light most favorable to the respondent on appeal, giving it all reasonable inferences and resolving conflicts in the evidence in the respondents favor. (Booth v. Robinson (1983) 147 Cal.App.3d 371, 377.)
We independently review whether the holographic instrument was executed with present testamentary intent when, as here, the relevant facts are undisputed. (Estate of MacLeod (1988) 206 Cal.App.3d 1235, 1241 [court independently determined based on undisputed facts whether document was executed with testamentary intent]; see Parsons v. Bristol Development Co. (1965) 62 Cal.2d 861, 866, fn. 2; Estate of Geffene (1969) 1 Cal.App.3d 506, 512.)
If the trial courts finding of testamentary intent is based on the resolution of disputed facts, we review the finding for substantial evidence. "If there is a conflict in the evidence bearing on the question of decedents intent . . . , or in the reasonable inferences to be drawn therefrom, we are bound by the trial courts determination of that conflict." (Estate of Beebee (1953) 118 Cal.App.2d 851, 856-857; see also Estate of Wong (1995) 40 Cal.App.4th 1198, 1204 ["If the document can constitute a will, the finding that it expresses testamentary intent is subject to a substantial evidence review."].)
2. The Probate Courts Determination that Millers Petition to Probate the Holographic Will Was Timely Filed Is Supported by Substantial Evidence
If the probate court finds an individual died intestate, a proponent of a will must petition for probate of the will within 120 days of the courts order of intestacy or within 60 days of first obtaining knowledge of the will, whichever is later. (§ 8226, subd. (c).)
Section 8226, subdivision (c), provides: "If the proponent of a will has received notice of a petition for probate or a petition for letters of administration for a general personal representative, the proponent of the will may petition for probate of the will only within the later of either of the following time periods: [¶] (1) One hundred twenty days after issuance of the order admitting the first will to probate or determining the decedent to be intestate. [¶] (2) Sixty days after the proponent of the will first obtains knowledge of the will."
Millers petition for probate of the holographic note card as Gilberts will was filed nearly two years after the October 15, 1996 order determining Gilbert died intestate. Nonetheless, Miller contends substantial evidence supports the trial courts implied finding that the petition was filed within 60 days of the date on which she first learned of the will. We agree.
Miller testified that she first saw the handwritten note card when Shelley M. Liberto, her second attorney, showed the card to her in a courtroom in Norwalk during one of the proceedings in this case and told her he had found the card while going through the decedents possessions. Miller also testified that Liberto appeared with her in court on only one occasion. The Order Appointing Successor Administrator, filed on October 14, 1998, part of the record in this case, indicates Liberto appeared for Miller at a hearing on September 29, 1998, in Department B of the Los Angeles Superior Court in Norwalk, the same day Liberto filed the Petition for Probate of Will and/or Lost Will on behalf of Miller, attaching a copy of Gilberts November 21, 1978 handwritten note. This evidence is sufficient to support a finding that the petition for probate was filed within 60 days of the date on which Miller first learned of the purported holographic wills existence.
3. The November 21, 1978 Handwritten Note Does Not Indicate Present Testamentary Intent
When the material provisions and signature to a will are entirely in the testators handwriting, the document is a holographic will. (§ 6111, subd. (a).) Such a will need not use any specific wording to be valid. (Estate of Wunderle (1947) 30 Cal.2d 274, 280-281; Estate of Wong (1995) 40 Cal.App.4th 1198, 1205.) Moreover, it need not use any particular format; it can, for example, be a letter. (Ibid.) The testator must, however, have intended a testamentary distribution of his property through that very document. (§ 6111, subd. (c); Estate of Sargavak (1950) 35 Cal.2d 93, 95 ["Before an instrument may be probated as a will it must appear from its terms, viewed in the light of the surrounding circumstances, that it was executed with testamentary intent. The testator must have intended, by the particular instrument offered for probate, to make a revocable disposition of his property to take effect upon his death."].)
"If the informal document fails to disclose testamentary intent, and merely expresses a desire or future intention, or refers to a past act or instrument of testamentary disposition, it cannot be given effect as a will. In other words, it must appear that the decedent intended to make a testamentary disposition by that particular paper, and if this cannot be shown it is immaterial that his testamentary intentions were in conformity with it." (12 Witkin, Summary of Cal. Law (9th ed. 1990) Wills & Probate, § 213, p. 251; see Estate of Wong, supra, 40 Cal.App.4th at p. 1205.)
The Probate Code expressly allows a court to consider extrinsic evidence to determine whether a testator prepared an instrument with testamentary intent. (§ 6111.5 ["Extrinsic evidence is admissible to determine whether a document constitutes a will pursuant to Section . . . 6111 [defining holographic wills] . . ."]; Estate of Brenner (1999) 76 Cal.App.4th 1298, 1302.) None of the testimony heard by the probate court in this case, however, concerned Gilberts November 21, 1978 handwritten note or the reasons he wrote it. Although Gilbert apparently told one friend shortly before his death that he had prepared a will (while also telling a second friend that he had not done so), it would be sheer speculation to suggest this dinner conversation related in any way to the short handwritten note Gilbert had prepared nearly two decades earlier. To the contrary, the witness who described the conversation also testified that Gilbert led her to believe the will to which he referred had been prepared by an attorney and that it contained somewhat detailed provisions concerning his intended bequests to Miller and her children. Accordingly, we agree with the probate court — albeit for different reasons — that this is not an appropriate case to look to extrinsic evidence to interpret the written instruments language.
Looking to the language of the purported holographic will itself, we cannot agree with the trial court that the instrument reflects a present testamentary intent. Gilberts letter to his cousin Lillian — with its statement of emotional distress and its plea for forgiveness — appears on its face to be a suicide note that simply refers to a past act or instrument of testamentary disposition: "In my death Ive left everything to you and the children." When, as here, the document itself does not express an intention to convey property upon death, it does not exhibit the intent necessary for a will. (Estate of Wong, supra, 40 Cal.App.4th at p. 1207.)
DISPOSITION
The probate courts order admitting the November 21, 1978 holographic instrument to probate is reversed. Appellants are to recover their costs on appeal.
We concur: ZELON, J. and MU&Ntil;OZ (AURELIO), J.