Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. P191280, Gerald C. Jessop, Judge.
O'ROURKE, J.
Kathy Krane appeals from a judgment finding an April 16, 1991 will of decedent Charles Brigham Kempff was revoked by the decedent and admitting a March 25, 1988 will to probate. Krane, the daughter of the decedent's wife, Doris Kempff, had filed a petition to admit to probate the decedent's April 16, 1991 will. On appeal, Krane contends the trial court erred by (1) using a May 1993 will of the decedent to prove his testamentary intent and (2) concluding the doctrine of dependent relative revocation revived decedent's March 1988 will. She further contends there is insufficient evidence to show decedent removed his signature or directed someone else to remove his signature from the April 1991 will. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The decedent married Doris Kempff in September 1971, approximately a year and a half after the death of his first wife, with whom he had two natural children, Jeanette Kempff and Kit McGee. After his marriage to Doris, the decedent quitclaimed his residence to himself and Doris as joint tenants.
To avoid confusion, we will refer to Doris Kempff and Jeanette Kempff by their first names. We intend no disrespect by our use of this shorthand device. The decedent apparently executed at least five wills during his life. Only three of these wills, executed in March 1988, April 1991 and May 1993, are at issue in this case.
On March 25, 1988, the decedent executed a will that bequeathed all of his personal and real property in equal shares to his surviving children, and all of his interest in stocks and bonds to Doris (the 1988 will). Decedent's relationship with Doris was "very rocky," and during the 1988 time frame while he worked with his attorneys on that will, he sent the bills and other papers to Jeanette so that the paperwork would not go to his house. The decedent also prepared a document severing the joint tenancy of his residence, which Jeanette also received.
In or around April 1993, the decedent called Carl Waid, Jeanette's long-time boyfriend, and told him he wanted to have the 1988 will refreshed or redone with particular attention given to the severance of the joint tenancy. Waid obtained a copy of the decedent's 1988 will from Jeanette, and at the decedent's request, Waid typed up "pretty much . . . a reiteration" of the 1988 will with the decedent's input, putting the 1993 date on it. Waid also added a new provision at the decedent's instruction specifically referring to a March 24, 1988 declaration severing joint tenancy and stating, "I would like my interests in this property to be disposed of in accordance with the terms of this will." According to Jeanette, this provision was added because her father wanted stronger wording.
On May 13, 1993, Waid accompanied the decedent to a hospital visit, and Jeanette arrived at the hospital with her employer Rob Whittemore. Whittemore and Waid witnessed the decedent sign the May 1993 will (the 1993 will) in Jeanette's presence. Jeanette took the original will home because her father did not want Doris to find it or learn about it. In the 1993 will, the decedent bequeathed all of his personal and real property in equal shares to his surviving children, and all of his interest in stocks and bonds to Doris.
The decedent died in October 2001. In June 2006 McGee and Jeanette filed a petition to probate their father's 1988 will. In July 2006, Krane located a copy of the 1993 will, two other earlier wills (not at issue in this case), and another will, dated April 16, 1991 (the 1991 will), in the decedent's dresser drawer in her mother's master bedroom. The 1991 will revoked all prior wills and bequeathed all of the decedent's estate to Doris, provided she survived him by at least 180 days. Krane observed that the decedent's signature on the 1991 will had been almost totally removed by a rectangular excision; this was the condition of that will when Krane found it. The day she found the wills, Krane showed the 1991 will to her mother, who denied excising the signature from the document. Krane did not know who cut the signature from the 1991 will.
On August 12, 2006, Doris responded to the probate petition with a will contest. She died shortly afterwards. Krane then filed a petition to probate the 1991 will. McGee and Jeanette objected to Krane's petition, arguing she lacked authority to submit the purported will to probate, the petition for probate was premature, and the 1991 will was invalid as a matter of law because it was unsigned and revoked by mutilation.
The matter proceeded to trial, on the questions of (1) whether the 1991 will revoked the 1988 will; (2) if the 1991 will was revoked, whether the 1988 will was revived by the doctrine of dependent relative revocation; (3) whether decedent's execution of the 1993 will operated to revoke all prior wills; and (4) if so, whether the 1988 will was revived by the doctrine of dependent relative revocation. The parties stipulated that the decedent had executed the 1991 will but that most of the signature had been physically removed by cutting out a portion of the page, leaving only traces of the original signature. The court preliminarily denied a request to amend the pleadings to allow a petition to probate the decedent's 1993 will, though it ruled that will was relevant to the decedent's testamentary intent and the doctrine of dependent relative revocation.
At trial, McGee testified that her father told her he excised his signature from the 1991 will; she did not witness him do so. According to her, the decedent told her that he wanted to make sure his things went to her and her sister. McGee knew that her father in the 1991 will had left everything to her stepmother. She was not aware that in wills executed before 1988, her father had left his estate equally divided between her, her sister and Doris. Jeanette testified that her father told her and Waid in 1993 that he wanted a new will; that he wanted to make sure his 1998 will would be upheld and asked it be "redone to mirror it just as an update." At the time her father executed the 1993 will, she was unaware of the existence of the 1991 will; she became aware of it only when legal proceedings commenced. Both Jeanette and McGee testified they had not excised their father's signature from the April 1991 will.
The probate court ruled in favor of petitioners Jeanette and McGee, specifically finding the decedent had revoked the April 1991 will. At the conclusion of trial, the court explained it had applied the presumption that the 1991 will, with an excised signature, was in the decedent's possession (in his master bedroom drawer), and that it had also considered the decedent's statements to Waid and others that he was unsatisfied with the 1991 will. Finding this a "situation that falls within [sections] 6123 and 6120 of the Probate Code regarding the statements by the decedent at the time," and applying the doctrine of dependent relative revocation, the court entered judgment admitting the 1988 will to probate.
DISCUSSION
I. Appellate Review Standards
We begin with the following basic appellate review principles: " 'A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown. This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error.' " (Denham v. Superior Court (1970) 2 Cal.3d 557, 564; see also Ketchum v. Moses (2001) 24 Cal.4th 1122, 1140.) Further, our function is to "review errors of law and not to pass on questions of fact." (9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 316, p. 354, original italics.) A trial court's findings on questions of disputed fact are reviewed under the substantial evidence rule, under which we consider all of the evidence in the light most favorable to the prevailing party, giving it the benefit of every reasonable inference, and resolving conflicts in support of the judgment. (ASP Properties Group v. Fard, Inc. (2005) 133 Cal.App.4th 1257, 1266.) Under this standard, " 'It is not our task to weigh conflicts and disputes in the evidence; that is the province of the trier of fact. Our authority begins and ends with a determination as to whether, on the entire record, there is any substantial evidence, contradicted or uncontradicted, in support of the judgment. Even in cases where the evidence is undisputed or uncontradicted, if two or more different inferences can reasonably be drawn from the evidence this court is without power to substitute its own inferences or deductions for those of the trier of fact, which must resolve such conflicting inferences in the absence of a rule of law specifying the inference to be drawn . . . . ' " (Ibid.)
In those cases in which the evidence does not conflict and only one reasonable inference can be drawn from the evidence, an appellate court independently reviews the trial court's decision as a question of law. (Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 630-631.)
II. Admission of 1993 Will as Evidence of Testamentary Intent
Krane contends the court erred by admitting the 1993 will into evidence for the purpose of showing the decedent's testamentary intent. Specifically, she maintains the 1993 will is void for any purpose under Probate Code section 21350, due to the fact that Waid drafted the 1993 will. Section 21350 provides in part that "no provision, or provisions, of any instrument shall be valid to make any donative transfer to . . . [¶] . . . The person who drafted the document [or] . . . [¶] . . . A person who is . . . a cohabitant with . . . the person who drafted the instrument."
Statutory references are to the Probate Code unless otherwise indicated.
The claim fails, however, since as petitioners point out, section 21350 expressly excludes from its provisions any circumstances falling under the following section, 21351, which states section 21350 does not apply if "[t]he transferor is related by blood or marriage to . . . the transferee . . . " (§ 21351, subd. (a).) Krane does not challenge this point in her reply brief, nor it appears could she, as there is no dispute the decedent was petitioners' natural father. Thus, section 21350 is inapplicable.
III. Application of the Doctrine of Dependent Relative Revocation
Krane contends the court misapplied the doctrine of dependent relative revocation because the evidence does not show a conditional revocation of the 1988 will by the decedent's execution of the 1991 will. More specifically, Krane argues no evidence shows the decedent was operating under some mistake when he executed the 1991 will, and assuming the decedent removed his signature from that instrument, his act was not a conditional revocation as required by the doctrine of dependent relative revocation; that is, the decedent's revocation of that will was not conditioned on the effectiveness of a second instrument. Petitioners respond that these arguments fail due to applicability of section 6123, subdivision (a), which they assert codifies the doctrine of dependent relative revocation.
Jeanette, in propria persona, has filed a separate respondent's brief incorporating by reference all of the arguments made in McGee's respondent's brief.
" ' Under the doctrine of dependent relative revocation, an earlier will, revoked only to give effect to a later one on the supposition that the later one will become effective, remains in effect to the extent that the latter proves ineffective . . . . The doctrine is designed to carry out the probable intention of the testator when there is no reason to suppose that he intended to revoke his earlier will if the later will became inoperative.' [Citation.] . . . 'The doctrine thus requires that, in revoking a prior and executing a subsequent will, it be specifically intended that certain provisions in the former testament have a continuing effect, either through similar provisions in the new will or because it is intended to make only conditional changes which subsequently do not become effective for the reason that the conditions on which [they are] predicated fail to come into being.' " (Estate of Anderson (1997) 56 Cal.App.4th 235, 242-243, in part quoting Estate of Kaufman (1945) 25 Cal.2d 854, 858-859 (Kaufman)& Estate of Cuneo (1963) 60 Cal.2d 196, 202.)
We have doubts as to whether the doctrine of dependent relative revocation as described in Estate of Anderson, supra, 56 Cal.App.4th 235, and the authorities on which Anderson relies, is directly applicable here to the extent the parties characterize the "first" will as the 1988 will, and the "second" will as the 1991 will. The parties agreed the April 1991 will was executed by the decedent, and thus that will, having an express revocation clause, was effective to revoke the 1988 will. (§ 6120, subd. (a) [a will or any part of a will is revoked by a subsequent will that revokes the prior will by express provision].) However, while the decedent executed the 1991 will intending to revoke the 1988 will, the 1991 will's dispositive provisions (bequeathing all of his estate to Doris) differ significantly from the prior will, which divided his estate equally, with the exception of stocks and bonds, between his surviving children. Thus, the 1991 will does not, standing alone, evidence an intention on the part of the decedent that the 1988 will was to continue in effect in the event the 1991 will could not be effective in accomplishing his purpose. (E.g., Estate of Cuneo, supra, 60 Cal.2d at pp. 203-204 [nevertheless applying doctrine given a codicil and other evidence of the testatrix's intent]; Kaufman, supra, 25 Cal.2d at p. 860 [applying doctrine when testator in executing new will did not change his testamentary purpose; court explained "[w]hen a testator repeats the same dispositive plan in a new will, revocation of the old one by the new is deemed inseparably related to and dependent upon the legal effectiveness of the new"].)
We need not decide the point, however, for two reasons. First, we review the result, not the trial court's reasoning. (Belair v. Riverside County Flood Control Dist. (1988) 47 Cal.3d 550, 568, declined to extend on other grounds in Pacific Bell v. City of San Diego (2000) 81 Cal.App.4th 596; Schabarum v. California Legislature (1998) 60 Cal.App.4th 1205, 1216.) Second, the trial court expressly acknowledged applicability of section 6123 in its ruling and thus we may conclude that statute was at least an alternative ground for its ruling.
Section 6123, subdivision (a) provides: "(a) If a second will which, had it remained effective at death, would have revoked the first will in whole or in part, is thereafter revoked by acts under Section 6120 or 6121, the first will is revoked in whole or in part unless it is evident from the circumstances of the revocation of the second will or from the testator's contemporary or subsequent declarations that the testator intended the first will to take effect as executed." Section 6123 sets forth a presumption against revival of a previously revoked will. However, unlike its predecessor statute, section 6123 allows consideration of extrinsic evidence to rebut that presumption so as to show the testator intended to revive the previously revoked will. (Cal. Law Revision Com. com., 53 West's Ann. Prob. Code (1991 ed.) foll. § 6123, p. 287.)
We agree section 6123, subdivision (a) compels the result reached by the trial court in admitting the 1988 will to probate. This conclusion is dependent on our finding substantial evidence that the decedent revoked the 1991 will, which we conclude appears in the record circumstantially if not directly. Direct evidence is not essential to prove the destruction, cancellation or alterations in a will were made by the testator. A presumption of revocation can arise from circumstantial evidence alone. (Estate of Nielson (1980) 105 Cal.App.3d 796, 800-801.) "[W]here the will is in the possession or under the control of a decedent until his last illness, the inference is the changes and alterations were made by the testator." (Neilson, at p. 801.)
Here, the record contains direct evidence from McGee that the decedent told her he had removed his signature from the 1991 will. While the trial court questioned McGee's credibility, it did not strike her testimony from the record and that testimony constitutes substantial evidence in support of the judgment. But even ignoring McGee's testimony, the record contains circumstantial evidence showing the 1991 will's revocation. First, the decedent's signature was almost entirely cut out of that document. Krane found the 1991 will in that condition inside a drawer in the decedent's master bedroom, permitting a reasonable inference (unrebutted by any other evidence) it was in his possession or under his control before his death. Section 6120, subdivision (b) provides that a will is revoked by being "burned, torn . . . obliterated, or destroyed, with the intent and for the purpose of revoking it, by either (1) the testator or (2) another person in the testator's presence and by the testator's direction." "The fact that a will is found with the signature destroyed may be sufficient to support a presumption of an intention to revoke the whole will." (In re Streeton's Estate (1920) 183 Cal. 284, 291.) Krane did not present any contrary evidence such as by showing the signature was restored or rewritten (see, e.g. Streeton's Estate at p. 291),to rebut the presumption that the destruction of the decedent's signature demonstrated an intent by him to revoke the entire will. Further, the decedent in or about April of 1993 expressed his wish for a new will "mirror[ing]" his 1988 will, and he in fact executed a later will (the 1993 will) identical to the 1988 will with respect to its material dispositive provisions, i.e., bequeathing all of his estate with the exception of stocks and bonds to his surviving children. The circumstantial evidence amply supports the trial court's conclusion that the decedent revoked the 1991 will.
Krane argues there is insufficient evidence to show the decedent's signature was removed from the 1991 will by the decedent or at his direction; that McGee's testimony on several points was impeached by prior, assertedly inconsistent, answers to requests for admissions and interrogatories, which should have compelled the trial court to reject her testimony. We cannot say McGee's discovery answers are materially inconsistent with her trial testimony and we do not find her testimony to be physically impossible or inherently improbable. (See Oldham v. Kizer (1991) 235 Cal.App.3d 1046, 1065 [to warrant rejection of a witness testimony there must be some physical impossibility or inherent improbability]; People v. Young (2005) 34 Cal.4th 1149, 1181 [testimony of a single witness may be substantial unless it is "physically impossible" or "inherently improbable"].) But as we have explained, aside from McGee's evidence, there was circumstantial evidence permitting the trial court to conclude the decedent (or someone at his direction) removed his signature from the April 1991 will, thus evidencing his intent to revoke it completely.
For example, McGee answered the following request for admission, " 'Admit that you don't know who removed the signature from the [April 1991] will . . . ' " by stating: "I . . . am unable to determine that . . . decedent . . . signed the purported 1991 will, and based upon such lack of information, I am unable to admit or deny [the] request for admission . . . ." McGee also answered an interrogatory asking, "Do you know who may have removed the signature from the alleged [April 1991] will . . ." with the following objection: "The question calls for speculation per the phrase 'who may have removed.' " In our view, the answer and objection do not contradict McGee's testimony that her father told her he had removed his signature from the April 1991 will. Krane's counsel's further attempts to impeach McGee with her discovery responses were subject to objections sustained by the trial court. Ultimately, McGee's discovery position as to whether her father ever signed the April 1991 will is irrelevant because the parties stipulated for purposes of trial that he had executed that will.
Krane also argues section 6123, subdivision (a) cannot apply because (1) the petitioners did not specifically assert that statute in their objections to her petition nor does the evidence support application of that doctrine; (2) the trial court did not enter judgment based on that statute; and (3) the evidence shows the March 1988 will was revoked by decedent's 1993 will, thus preventing application of section 6123.
We reject Krane's arguments as to petitioners' failure to plead the statute or the doctrine of dependent relative revocation as an affirmative defense. By the time of trial, the parties had agreed, as reflected in their joint trial statement, that application of the doctrine of dependent relative revocation and the question of the 1988 will's revival were contested material issues to be resolved by the trial court. As we have explained, section 6123 sets forth an evidentiary presumption relating to the revival of a will that may be rebutted by specified evidence about the testator's intent. Further, the trial court specifically stated at the conclusion of trial that it found the circumstances fell within section 6123, and we are entitled to uphold its decision on any theory of the law applicable to the case. (Belair v. Riverside County Flood Control Dist., supra, 47 Cal.3d at p. 568.) Finally, at Krane's urging pretrial, the trial court ruled the May 1993 will admissible only for purposes of establishing the decedent's testamentary intent and for purposes of the doctrine of dependent relative revocation. Indeed, Krane took the position prior to trial in an evidentiary motion that the 1993 will should have been entirely excluded from evidence. Krane cannot now assert on appeal a substantive argument that the 1988 will was revoked by the 1993 will in view of its limited purpose at trial.
DISPOSITION
The judgment is affirmed.
WE CONCUR: HUFFMAN, Acting P. J., IRION, J.