Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Super. Ct. No. 1166322
Richard J. Francis, for Appellant.
Jeffery H. Speich, for Respondents
YEGAN, J.
Fred D. Rogers appeals from a judgment (1) denying his petition to admit to probate a 1985 will of Howard L. Andersen (hereafter the decedent), (2) decreeing that the decedent's estate "will be administered under the laws of intestacy," and (3) confirming the appointment of respondent Jolene Andersen (hereafter Jolene) as special administrator. Appellant contends that the trial court erroneously concluded that the decedent had revoked the 1985 will. We disagree and affirm.
Factual and Procedural Background
On November 21, 1985, the decedent executed a valid, typed, witnessed will (hereafter the 1985 will). The will bequeathed to appellant the decedent's duplex on Banner Avenue in Summerland. The decedent died on February 21, 2005. After his death, the original 1985 will was found.
In addition to the original 1985 will, the following documents were also found after the decedent's death: (1) An empty envelope entitled "Last Will and Testament of Howard L. Andersen." The date "Nov. __, 1987" is handwritten on the envelope. The handwriting is consistent with the decedent's. (2) A copy of the 1985 will with additions and alterations in the decedent's handwriting. At the top right corner on the first page of the copy, the following notation appears: "Revoke 10/20/03." This is followed by the decedent's initials, "HLA." The revocation and initials are in the decedent's original handwriting. A copy of this document is attached as Appendix A.
The decedent's friend, Andi Pirnat, was with decedent during the evening of October 19, 2003, before his cancer surgery the following morning. At the decedent's direction, she prepared a revised will (hereafter the 2003 will) based on his then current will (hereafter the 1987 will). She had removed the 1987 will from either the envelope that bore the date, "Nov. __, 1987," or "something similar to this envelope." Pirnat could not recall whether any witnesses had signed the 1987 will, which named appellant as executor. The decedent had had a falling out with appellant and wanted to remove him "as executor and receiver of property."
Appellant, an attorney, was acting as the decedent's counsel concerning the drafting of the 2003 will. During the evening of October 19, 2003, appellant communicated with the decedent and Pirnat via telephone conversations and facsimile transmissions.
Pirnat did not see the decedent write "revoke" on any of his wills. However, she knew that he had written "revoke" on his old will because appellant had instructed him to do so "in order for the old will to be null and void." Appellant told the decedent to write "revoke" on the first page of the old will, followed by his signature or initials. Appellant also instructed the decedent to include a clause in the 2003 will revoking all previous wills. The decedent said that "he wanted to make sure prior wills . . . were revoked."
The decedent signed the 2003 will, and Pirnat signed as a witness. The decedent placed the 2003 will in his home safe, but it was not found after his death.
On March 21, 2005, Jolene, the decedent's sister, filed a petition for letters of administration. She alleged that the decedent had died intestate. Appellant disagreed and filed a petition to probate the 1985 will. Appellant estimated that the net value of decedent's duplex, bequeathed to him pursuant to the 1985 will, was $850,000.
Respondents Jolene, Cordell M. Andersen, Marlo R. Andersen, and Gayle Lubin, the decedent's siblings, contested appellant's petition to probate the 1985 will. A trial was conducted, and the court issued a statement of decision finding as follows: (1) "[P]robably in 1987," the decedent prepared and executed a will "consistent" with the handwritten changes on the copy of the 1985 will (Appendix A). The 1987 will revoked the 1985 will. (2) On or about October 20, 2003, the decedent prepared a revised will "using the 1987 will as a template" and executed that will. The 2003 will "revoked the 1985 and 1987 wills." The 2003 will was not found after the decedent's death and is therefore presumed to have been revoked. (Prob. Code, § 6124.) (3) "On October 20, 2003, decedent signed and dated a valid holographic will on the face of a copy of the 1985 will [Appendix A] revoking the 1985 will."
All statutory references are to the Probate Code
The trial court's statement of decision concludes: "Because decedent left no unrevoked will at the time of his death, decedent died intestate. [¶] Respondents are decedent's heirs at law and are entitled to inherit his estate through intestacy."
Will Revocation Rules
"The provisions of the Probate Code relative to the revocation of wills are specific and revocation can be made only in the manner and by the means prescribed therein." (In re Holmes' Estate (1948) 88 Cal.App.2d 360, 365.) The relevant statute is section 6120, subdivision (a), which provides that a will is revoked by "[a] subsequent will which revokes the prior will or part expressly or by inconsistency." If a subsequent, duly executed will contains a clause revoking prior wills, the clause remains operative even if the subsequent will is revoked, unless the testator intended that a prior will take effect as executed. (§ 6123; In re Johnston's Estate (1922) 188 Cal. 336, 344.)
"At the trial, the proponents of the will have the burden of proof of due execution. The contestants of the will have the burden of proof of . . . revocation." (§ 8252, subd. (a).) Because the 1985 will was duly executed, respondents bore the burden of proving that it had been revoked.
The 1987 Will
Appendix A contains a typed provision declaring, "I revoke all prior Wills and Codicils." The trial court found that this provision had been incorporated into the 1987 will. Therefore, the trial court concluded that the 1987 will had revoked the 1985 will.
The 1987 will, which was not located after the decedent's death, was not proved to be a holographic will. "A will . . . is valid as a holographic will, whether or not witnessed, if the signature and the material provisions are in the handwriting of the testator." (§ 6111, subd. (a).)
To be valid, a will that does not qualify as a holographic will must bear the signatures of two witnesses. "The traditional method for making a valid will is that specified in Probate Code section 6110: a written instrument is signed by the maker of the will or testator, and witnessed by two witnesses who are present when the testator signs or acknowledges his signature." (Estate of Brenner (1999) 76 Cal.App.4th 1298, 1301; see also In re Estate of Saueressig (2006) 38 Cal.4th 1045, 1057 [valid will requires attestation by two witnesses prior to the testator's death].)
The record contains no evidence that the 1987 will was signed by two witnesses. Pirnat testified that she could not recall whether any witnesses had signed it. The 1987 will, therefore, was invalid. As an invalid will, it could not have revoked the 1985 will. (See In re Estate of Sola (1990) 225 Cal.App.3d 241, 248-249 [purported holographic will that was invalid did not revoke prior valid will].)
The 2003 Will
The trial court found that the 2003 will contained a revocation clause that expressly revoked both the 1985 and the 1987 wills. But the 2003 will, which was not a holographic will, suffered from the same infirmity as the 1987 will: it was not attested to by two witnesses. Pirnat testified that she had signed the will as a witness. There is no evidence that anyone else had signed as a witness. Thus, like the 1987 will, the 2003 will was also invalid and could not have revoked the 1985 will.
The 2003 Holographic Will
The trial court found that on Appendix A the decedent had "signed and dated a valid holographic will . . . revoking the 1985 will." The reasonable implication of this finding is that the handwritten revocation at the top right corner on the first page of Appendix A constitutes a valid holographic will revoking the 1985 will.
It is not fatal to the validity of the holographic will that the language in question merely revokes a prior will and does not dispose of any property. Section 88 provides: " 'Will' includes . . . any testamentary instrument which merely . . . revokes or revises another will." Nor is it fatal to the validity of the holographic will that the decedent wrote his initials, "HLA," instead of his name. A testator's initials may constitute a valid signature. (In re Morris' Estate (1969) 268 Cal.App.2d 638, 640.)
The validity of the holographic will turns on whether it sufficiently identifies the 1985 will to effect a revocation of that will. This involves a matter of interpretation. "The interpretation of a will . . . presents a question of law unless interpretation turns on the credibility of extrinsic evidence or a conflict therein. [Citations.]" (Burch v. George (1994) 7 Cal.4th 246, 254.) The testimony of Pirnat constitutes the only extrinsic evidence concerning the holographic will. Thus, there is no conflict in the extrinsic evidence. Neither party has identified any issues of credibility concerning Pirnat's testimony. We therefore independently interpret the document.
In support of their positions, both parties cite In re Smith's Estate (1948) 31 Cal.2d 563 (hereafter Smith). In Smith the decedent executed a valid, witnessed, two-page will. She deposited the original of the will with her attorney and retained only an unexecuted carbon copy. Across the typewritten portion on each page of the copy, the decedent hand wrote a signed and dated statement revoking the will. Our Supreme Court held that these handwritten statements adequately identified the will that was being revoked and constituted a valid revocation: "On this record all that was properly before the court was a duly executed express revocation of a prior will, which presented a case of intestacy and called for the issuance of letters of administration to the party entitled thereto. [Citation.]" (( Id ., at p. 569.)
There are factual differences between the instant case and Smith. Unlike the will in Smith, Appendix A is not merely a copy of the 1985 will on which the decedent expressed his intent to revoke. Instead, Appendix A is a copy of the 1985 will with changes made in the decedent's handwriting. Moreover, the decedent here did not express his intent to revoke across the typewritten portion on each page of the copy of Appendix A.
Nevertheless, in view of Pirnat's testimony, the decedent's handwritten revocation on the first page of Appendix A expresses an unequivocal intent to revoke the entire 1985 will. Pirnat testified that, to assure all prior wills would be revoked, appellant had instructed the decedent to write "revoke" on the first page of prior wills, followed by his signature or initials. In addition, the decedent had told Pirnat that "he wanted to make sure prior wills . . . were revoked."
Furthermore, Pirnat testified that the decedent had had a falling out with appellant and had intended to remove him "as receiver of property." This intent would be defeated if the handwritten revocation on the first page of Appendix A were not interpreted as revoking the 1985 will, since that will bequeathed the decedent's duplex to appellant. Appellant's petition to probate the 1985 will lists the duplex as the only asset in the decedent's estate.
That the revocation is on paper which also contains typing is of no importance. "The holographic instrument was self-contained and the typewriting on the sheets is therefore deemed not part of it. [Citations.]" (Smith, supra, 31 Cal.2d at p. 567.) Accordingly, exercising our independent review, we conclude that the handwritten revocation on the first page of Appendix A constitutes a valid holographic will revoking the 1985 will.
We therefore need not consider respondents' argument that appellant is estopped from claiming that the 1985 will was not revoked.
The Doctrine of Dependent Relative Revocation Is Inapplicable
" '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.' [Citation.]" (Estate of Anderson (1997) 56 Cal.App.4th 235, 242-243.)
In its statement of decision, the trial court ruled as follows: "The doctrine of dependent relative revocation is inapplicable because reviving the 1985 [will] would be contrary to the decedent's clear intention . . . at the time he revoked the 1985 will [which] was that [appellant] would not receive his duplex or any other substantial asset from his estate." We agree with the trial court.
Disposition
The judgment is affirmed. Respondents shall recover their costs on appeal.
We concur: GILBERT, P.J., COFFEE, J., J. William McLafferty, Judge.