Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from an order of the Superior Court for Los Angeles County. Reva Goetz, Temporary Judge, Los Angeles County Super. Ct. No. BP099445
Walter L. Gordon III for Petitioner, Appellant and Cross-Respondent.
Fox and Fox, Frank O. Fox and Claire S. Fox for Objector, Respondent and Cross-Appellant.
WOODS, J.
Appellant, Beverly Warren, appeals the order denying her petition for probate of will and for letters testamentary of the estate of Warren’s great aunt, Sally Mae Turner (the “Decedent”). On appeal, Warren claims insufficient evidence supported the trial court’s denial of probate under Probate Code section 8252. Specifically, Warren maintains that there is insufficient evidence to support the finding that she had not offered the complete and original will the Decedent allegedly executed in 2005 into probate. Alternatively, Warren claims that if she has not sustained the burden to reverse the incomplete will decision, the will should have nevertheless been admitted as a lost or destroyed will pursuant to section 8223. As explained herein, substantial evidence presented during the proceedings below supported the order denying probate of the will offered by Warren.
All statutory references are to the Probate Code unless otherwise indicated.
In his cross-appeal, the Decedent’s husband, Samuel Turner, asserts the lower court erred in finding that a prior will the Decedent executed in 1990 was revoked by the 2005 will Warren offered into probate. As we explain below, the court did not err in denying probate of the 1990 will because although the 2005 will was found to be incomplete, it nonetheless contained a valid revocation clause. Accordingly, we affirm.
FACTUAL AND PROCEDURAL SUMMARY
The Parties
Warren is the grandniece of the Decedent, Sally Mae Turner, who passed away in May 2006. Respondent Samuel Turner (“Turner”) is the surviving spouse of the Decedent.
The Wills and Probate Proceedings
On January 26, 1990, the Decedent executed a will naming her husband, Turner, as sole beneficiary and executor.
On July 14, 2006, Warren filed a petition for probate of will (Petitioner’s Exhibit 1) allegedly executed by Decedent on May 22, 2005. Pages 3, 6, and 7 of Petitioner’s Exhibit 1 were photocopies. The alleged page 3 of Petitioner’s Exhibit 1 contains the material provisions that named Warren as the beneficiary and executor of the estate. Warren later submitted a stand-alone document purported to be an original of page 3 as Petitioner’s Exhibit 2. Warren claimed that she found Petitioner’s Exhibit 2 among the other copies of the will after she had filed Exhibit 1. She did not offer any other explanation as to why Petitioner’s Exhibits 1 and 2 were not filed together.
In August 2006, Turner filed a petition for probate of the 1990 will and filed objections to Warren’s petition. At trial, Turner also brought forward a purportedly original 2005 will (Turner’s Exhibit A) that contained original pages that were identical to those of Warren’s purported 2005 will, except that Turner’s Exhibit A was missing a page 3.
Testimony at Trial
During the trial, a wills expert testified that pages 3, 6, and 7 of Petitioner’s Exhibit 1 were copies and not originals. He also testified that all other pages included in Petitioner’s Exhibit 1, the single page admitted as Petitioner’s Exhibit 2, and Turner’s Exhibit A contained original signatures. Furthermore, the parties stipulated that all pages found in Turner’s Exhibit A were originals.
However, Felisa McMillian, a paralegal, testified she prepared the 2005 will and gave a single, original copy to the Decedent. Ms. McMillian testified concerning the distribution of the estate. On direct examination, she testified that the Decedent intended to leave her property to Warren. However, on cross-examination, Turner’s counsel impeached Ms. McMillian using her deposition testimony that disclosed the Decedent and Turner had discussed with Ms. McMillian the idea of leaving their respective properties to each other.
Supporting that contention, Beatrice Shaw, a witness who observed the Decedent sign the 2005 will, testified that Turner was the sole beneficiary of the will she witnessed the Decedent sign. Ms. Shaw also stated that throughout her close friendship with the Decedent, she always saw the Decedent and Turner together and never saw anything to indicate that the couple did not get along.
Similarly, Mildred Jenkins, the Decedent’s sister-in-law, also attested to the close relationship that the Decedent and Turner shared. She added that she never heard the Decedent complain about Turner.
Earnestine Union was another witness to the 2005 will, but testified that she did not read the will she signed and did not discuss the will’s provisions with the Decedent.
The Trial Court’s Findings
Based on the evidence, the trial court ruled it could not find that Petitioner’s Exhibit 2 was a reliable document. As such, the trial court refused to combine it with Petitioner’s Exhibit 1 and thus did not have a complete original 2005 will. Specifically, the court determined that Petitioner’s Exhibit 2 contained crease marks dissimilar to those of Petitioner’s Exhibit 1 and also bore other markings and smudges that indicated that the documents were not kept or maintained together. Since Petitioner’s Exhibit 2 contained the material provisions of the purported will, the court denied the petition for probate for Petitioner’s Exhibit 1.
However, the trial court also denied probate to the Decedent’s 1990 will by holding that Petitioner’s Exhibit 1, though incomplete, revoked the prior will. As such, the Decedent’s estate was to be distributed through intestate succession.
Petitioner timely appealed. Turner timely filed a cross-appeal.
STANDARD OF REVIEW
Whether a document qualifies as a will under the Probate Code is a legal question subject to independent review. (In re Estate of Wong (1995) 40 Cal.App.4th 1198, 1204.) Nonetheless, the factual underpinnings of a ruling, including whether a document expresses testamentary intent, are binding on this court unless unsupported by substantial evidence. (Ibid.) The rules of evidence, the weight to be accorded to the evidence, and the province of a reviewing court, are the same in a will contest as in any other civil case. (Estate of Snowball (1910) 157 Cal. 301, 305; Estate of Barr (1924) 69 Cal.App. 16, 33.) 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. (Crawford v. Southern Pacific Co. (1935) 3 Cal.2d 427, 429.) The appellate court must consider the whole record and defer to the trier of fact’s determination of the weight and credibility of the witnesses and evidence. (In re Marriage of Mix (1975) 14 Cal.3d 604, 614; Estate of Downey (1942) 51 Cal.App.2d 275, 285.) 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. (Crawford, supra, 3 Cal.2d at p. 33.)
DISCUSSION
I. Warren’s Appeal.
Before this court, Warren claims the lower court erred in denying her petition to open probate on the 2005 will of the Decedent. Specifically, Warren maintains that there is insufficient evidence to support the finding that she had not offered a complete and original will. Alternatively, she claims that if she has not sustained the burden to reverse the incomplete will decision, the will should have nevertheless been admitted as a lost or destroyed will pursuant to section 8223 or that the court should have combined Petitioner’s Exhibit 2 with Turner’s Exhibit A. We address these contentions in turn.
When one or more instruments claimed to constitute a will are presented for probate, the only legitimate question before the court is whether or not the propounded instrument(s) constitute a will. A will, whether on a single page or on multiple pages or composed of other kinds of writings, is a single document that must be executed only once. Each page or writing that makes up a will need not be independently executed. What is required is that the pages or other writings that were intended to be part of the will were all present at the time of execution. Pages or other writings that were present at the time of execution but not intended to be part of the will are not part of the will. (Wunderle v. Wittmer (1947) 30 Cal.2d 274, 282-283 (Wunderle); Rest.3d Property, Wills & Other Donative Transfers, § 3.5.) 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. (Estate of Salmonski (1951) 38 Cal.2d 199, 207.) As such, factual determinations, such as those by the trial court, are not to be disturbed.
In the law of wills, integration, as distinguished from incorporation by reference, occurs when there is no reference to a distinctly extraneous document, but it is clear that two or more separate writings are intended by the testator to be his or her will. (Wunderle v. Wittmer, supra, 30 Cal.2d at p. 281.) Thus, several writings, connected by sequence of thought, folded together, or physically forming one document have been admitted to probate as constituting an holographic will. (See Estate of Morrison (1950) 98 Cal.App.2d 380, 383-384; Estate of Moody (1953) 118 Cal.App.2d 300, 311.) Probate Code section 8252, subdivision (b), grants the trial court discretion to determine any contested issue of fact that affects the validity of the will. With such authority, here the trial court found that Warren had not offered a complete, original will into probate.
The lower court found that Petitioner’s Exhibit 2, the page 3 of Warren’s purported will that contained its material provisions (i.e., the page named Warren as the beneficiary and executor of the estate) was unreliable and was not a part of the 2005 will presented in Petitioner’s Exhibit 1. Without a reliable page 3, the trial court deemed the purported will, Petitioner’s Exhibit 1, incomplete and thus ineligible for probate. Evidence in the record supports this determination. The trial court referred primarily to the fact that Petitioner’s Exhibit 2 bore crease marks that differed from those of Petitioner’s Exhibit 1. This indicated that the documents were not kept or maintained together, creating the inference that the two exhibits were not together at the time of execution. Furthermore, the trial court observed that Petitioner’s Exhibit 2 contained other markings and smudge marks not present in Petitioner’s Exhibit 1. Such information is consistent with the fact that Warren offered the exhibits into evidence separately with no credible or reliable explanation as to why page 3 of the will was not included with the original petition. Based on the facts, the trial court did not accept Petitioner’s explanation that Petitioner’s Exhibit 2 was lost in the various copies of the will in her possession.
In reviewing the facts, this court must bear in mind that all questions of weight of evidence and credibility of witnesses are for the trial court, and if there is any substantial evidence to support the judgment, it cannot be set aside by the reviewing court. (Barr, supra, 69 Cal.App. at p. 33.) Furthermore, at the trial, the proponents of a will have the burden of proof of due execution. (Estate of Gonzalez (2002) 102 Cal.App.4th 1296, 1303-1304.) Given these considerations, sufficient evidence supported the trial court’s determination that Warren did not submit a complete will.
Though the expert witness attested to the fact that Petitioner’s Exhibit 2 contained a valid signature, he gave no testimony on the appropriateness of inserting it into Petitioner’s Exhibit 1 to form a complete will. In contrast, by acknowledging that both Petitioner’s Exhibit 1 and Turner’s Exhibit A contained valid signed original pages of the same purported will, he cast doubt on whether either could be considered an original will given the subsequent testimony of Felisa McMillian. Ms. McMillian, the paralegal that helped prepare the will, testified that only one original will was ever created. It was with this conflicting testimony that the trial court made its determination. In her brief, Warren suggests that the expert was mistaken in his analysis, but determinations of credibility are for the trier of fact.
In addition, Ms. McMillian gave some testimony inconsistent with the provisions of Petitioner’s Exhibit 2 in describing how the Decedent intended to distribute her estate, which consisted solely of the real property—a residence. Both the Decedent and Turner owned interests in separate houses and Ms. McMillian was cross-examined about her deposition testimony in which she stated that the couple had once expressed interest in having the surviving spouse take ownership of the properties.
Ms. McMillian was not the only witness who provided testimony that raised questions about the reliability of the provisions of Petitioner’s Exhibit 2 and whether it accurately reflected the Decedent’s testamentary intent. Both Beatrice Shaw and Mildred Jenkins testified that the Decedent and Turner had a very close relationship. Ms. Jenkins had never heard of the Decedent ever complain about Turner in their marriage that lasted almost 20 years. Such testimony provides support that the Decedent intended to leave her estate to Turner rather than to Warren. All rules of construction yield to the paramount rule requiring that the testator’s intention must, as far as possible, be given effect. (Estate of Joslyn (1995) 38 Cal.App.4th 1428, 1433.) Where the evidence of intent is not clear, we may also take into consideration the circumstances at the time of execution of the will. (Ibid.) Thus, Petitioner’s Exhibit 2 appears to be at odds with evidence of the Decedent’s testamentary scheme.
More importantly, Ms. Shaw, a witness to the execution of the purported 2005 will, testified that the will she signed listed Turner as the sole beneficiary of the Decedent’s property. As mentioned above, Petitioner’s Exhibit 2 instead lists Warren as the sole beneficiary and executor.
In sum, given the evidence cited and the importance of the disputed missing page, this court finds that the trial court had sufficient evidence to support its decision to deny the petition for probate of the will offered by Warren. Our conclusion here is supported by Wunderle, a case in which the California Supreme Court affirmed a lower court finding that neither the testamentary intent nor the date of an otherwise valid holographic will could not be supplied by separate documents when there was no evidence that the documents were physically attached, kept together or any other extrinsic evidence the testator intended they be construed together. (Wunderle v. Wittmer, supra, 30 Cal.2d at pp. 283-284.) We further note that courts in other jurisdictions have ruled similarly. The New York Surrogate’s Court admitted to probate a will which contained a missing “meaningless page” but strongly questioned whether it could do the same had the page contained any meaningful portion of the Decedent’s testamentary scheme. (In re Estate of Hall (1983) 118 Misc.2d 1052.) Later, the District of Columbia Court of Appeals cited the New York Surrogate’s Court’s decision in reversing the lower court’s decision to admit into probate three pages of a five-page will. (In re Estate of Weston (2003) 833 A.2d 490.) In Weston, the trial court admitted three pages which contained the bequests and residuary disposition, but denied admission to the other two pages because they were dissimilar from the admitted pages in that they had different types of paper, different staple locations, different format, different typeface, different margins, different borders, and were prepared on a different machine. (Ibid.) The court reversed the trial court’s decision to admit the three pages because the record supported the conclusion that the deceased had a different testamentary scheme. (Id. at p. 492.) This same reasoning applies in this case.
Finally we acknowledge that on appeal Warren refers to facts that support her position. Specifically she cites expert testimony that the signature on Petitioner’s Exhibit 2 is valid. In addition, Ms. McMillian testified that the Decedent instructed her to name Warren as the beneficiary. Nevertheless, at most, this is a case in which the evidence before the probate court would support conflicting inferences on the question posed by Warren; but where either of two inferences may be reasonably drawn from the evidence by the trier of the facts, the reviewing court will not substitute its deductions for those of the trial court. (In re Schultz’ Estate (1960) 54 Cal.2d 513, 518.) Such is the result here and thus, because the evidence that supports the court’s order is legally sufficient, we defer to the trial court’s findings.
Admission as a Lost or Destroyed Will
Alternatively Warren contends the court erred in failing to admit the 2005 (Petitioner’s Exhibit A) as a lost or destroyed will. This claim is without merit. Probate Code section 8223 has no application because the petition did not seek to probate a lost or destroyed will based on Petitioners Exhibit 1, the petition sought to open probate on a complete, valid fully-attested will. (Estate of Janes (1941) 18 Cal.2d 512, 517-518.) The stringent requirements for proof of lost or destroyed wills are imposed to avoid fraud. (Ibid.) Warren did not attempt to proceed on this theory until after the matter had been submitted to the court and the court had issued its tentative ruling denying the petition. Because she did not proceed on that theory below and did not present evidence in support of it during the trial, she cannot now complain.
It appears that Warren was granted leave to amend the probate petition to allege that pages 6 and 7 of the 2005 will were lost, but she did not make the same assertions as to page 3 of the will which contain the bequests to Warren.
Combining Petitioner’s Exhibit 2 with Turner’s Exhibit A.
Finally, Warren argues that the trial court should have combined Petitioner’s Exhibit 2 with Turner’s Exhibit A to form a complete will. However, there is nothing on the record to show that the issue ever came before the trial court. Moreover, the expert witness never testified to the appropriateness of inserting Petitioner’s Exhibit 2 in either Petitioner’s Exhibit 1 or Turner’s Exhibit A. “The appellate court can look only to the record to ascertain the lower court’s action. Hence facts not properly presented in the record will not be considered on appeal. . . . Thus, a party who has failed to avail himself of the privilege of incorporating into the record matters on which he relies as grounds for relief cannot base any effective argument on appeal upon such matters.” (Estate of Bernard (1962) 206 Cal.App.2d 375, 380.) Consequently, the only relevant matter on appeal is whether the lower court erred in refusing to combine Petitioner’s Exhibit 2 with Petitioner’s Exhibit 1 to form a single valid will. As explained above, the answer is no.
II. Cross-Appeal
Turner filed a cross-appeal to challenge the trial court’s decision to revoke the Decedent’s will dated January 26, 1990, based on the revoking provision and the savings clause found in Petitioner’s Exhibit 1. Turner contends that in order to revoke a prior complete will, the subsequent will must also be statutorily valid and complete. However, the case law cited by Turner--In re Marx’ Estate (1917) 174 Cal. 762--is inapplicable to the case at hand. In that case, the later will was purported to partially revoke the previous will through inconsistency in its distributions. The Marx court made its decision based on the fact that the second will did not expressly or wholly revoke the previous will. (Id. at p. 764.) By contrast, the will at hand fully and expressly revoked the 1990 will.
Also distinguishable is Wunderle where Supreme Court found that none of the documents presented in the record met the statutory legal formalities to constitute a will. Thereafter, the Wunderle Court concluded, without analysis or discussion that the three documents could not serve to “void” the prior properly executed will. (Wunderle v. Wittmer, supra, 30 Cal.2d at p. 284.) Here, however, the court denied Warren’s request to probate Petitioner’s Exhibit 1 not because it lacked the requisite legal formalities missing in Wunderle. Instead the court denied Warren’s petition because the will she attempted to probate was incomplete--missing an original page 3 which contained the material provisions that named Warren as the beneficiary and executor of the estate. Nonetheless, the court found that will sufficient to revoke the 1990 will offered by Turner because Petitioner’s Exhibit 1 contained an express revocation clause as well as a savings clause and because each of these clauses appeared on separate pages containing the original signature of the decedent.
The distinction between the Wunderle Court’s findings--that the three documents did not satisfy the statutory requirements to constitute a “will” at all--and the finding made by the lower court here--that Petitioner’s Exhibit 1 was an invalid will simply because it was incomplete--is significant. The fact that the Petitioner’s Exhibit 1 was not sufficiently complete to grant the petition to open probate does not also mean that Petitioner’s Exhibit 1 does not qualify as a “will” for the purposes of Probate Code which defines a “will” broadly to include “any testamentary instrument which merely appoints an executor or revokes or revises another will.” (§ 88.) Nor does it mean that the document fails to qualify as a “will” for the purposes of Probate Code section 6120, governing revocation; Probate Code section 6120, subdivision (a) provides that a will may be revoked by a subsequent will which revokes the prior will expressly or by inconsistency. Indeed, a case on point holds that a court is allowed to deem a prior will revoked by operation of a subsequent will even where a court deems the latter ineligible for probate. (Estate of Lopes (1984) 152 Cal.App.3d 302.) The court in Lopes stated: “there is no warrant for the conclusion the preconditions for admitting a will to probate are meant to apply to its admission in evidence for other purposes.” (Id. at p. 308; see Estate of Strickman (1966) 247 Cal.App.2d 469, 472.) The record shows that the trial court had sufficient evidence to conclude that all of the other pages were validly signed and executed by the Decedent. As such, the revoking clause remains effective to revoke the Decedent’s 1990 will. The Decedent’s testamentary scheme will still be preserved through intestate succession as Turner will be the sole heir.
In view of the foregoing, we conclude the lower court properly denied the petition to probate the 1990 will.
DISPOSITION
The order is affirmed. Both parties are to pay their own costs on appeal.
We concur: PERLUSS, P.J. ZELON, J.