Opinion
D076365
08-10-2020
Estate of CHARLES JOHN NICHOLAS, Deceased. CHERIE ISEPPI, Petitioner and Appellant, v. DEBRA E. LEMACHER, Objector and Respondent.
Susan Stricklin Wilson and Barbara K. Meserve, for Petitioner and Appellant. Robert V. Masenga; Law Offices of Eric Y. Yamamoto, Eric Y. Yamamoto; Law Offices of Andrea Lynn Rice and Andrea Lynn Rice, for Objector and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 37-2018-00007005-PR-LA-CTL) APPEAL from a judgment of the Superior Court of San Diego County, Robert C. Longstreth, Judge. Affirmed. Susan Stricklin Wilson and Barbara K. Meserve, for Petitioner and Appellant. Robert V. Masenga; Law Offices of Eric Y. Yamamoto, Eric Y. Yamamoto; Law Offices of Andrea Lynn Rice and Andrea Lynn Rice, for Objector and Respondent.
INTRODUCTION
Charles John Nicholas died December 15, 2017 intestate. He was survived by six first cousins, three first cousins once removed, and two first cousins twice removed. His goddaughter Cherie Iseppi filed a creditor's claim stating Nicholas had promised to leave all his assets to her and to make her the sole beneficiary of the estate, and she was making the claim based on an oral contract. Her claim was rejected, and she filed a petition for an order enforcing an oral contract, for equitable estoppel, and for a constructive trust, pursuant to Probate Code section 21700. Following trial, the probate court denied her petition.
Further section references are to the Probate Code unless otherwise specified.
Iseppi contends the court's denial was erroneous because she provided clear and convincing evidence of an oral promise enforceable in equity to leave her the entire estate. She further contends the court incorrectly interpreted section 21700 to require proof of detrimental reliance to reach its conclusion.
We conclude there is substantial evidence to support the Probate Court's order. Because we determine that substantial evidence supports the denial of the petition on the basis that Iseppi did not meet her evidentiary burden to demonstrate a promise to leave her the entire estate, we need not determine whether the equitable principle of unjust enrichment provides a proper basis for a claim under section 21700. Were we to do so, we would conclude it does. However, Iseppi has not met her burden of proof on this requirement either. Accordingly, we will affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Nicholas grew up in Milwaukee alongside first cousin Debra Lemacher, who was close in age to him. When they were small, they were close; their families celebrated holidays together and their parents took turns babysitting each other's children. As children, they built rafts, explored puddles, and dug for bones; Nicholas looked up to Lemacher, and they had a lot of fun together.
Nicholas met Michael Bradley, Iseppi's father, in 1970 in a high school gym class in Wisconsin. Neither had siblings, and the two had shared interests and were close. Nicholas served as a groomsman at Bradley's wedding, and after Iseppi was born in 1974, Nicholas attended her baptism in 1975 and was named her godfather.
Nicholas moved to Illinois, then to California. After that, he lost touch with Lemacher until they reconnected following Lemacher's brother's death in 2012.
In the meantime, Nicholas stayed in touch with Bradley and Iseppi. Nicholas helped pay for private ice-skating lessons when Iseppi was nine. When Iseppi graduated from high school, he sent her a $1,000 check. A few years after her high school graduation, Iseppi visited with Nicholas in California.
Iseppi traveled all over the world, but she kept in touch with Nicholas by email and postcards, and he consistently tracked her down to send her birthday gifts and Christmas cards.
In June 2005, Iseppi invited Nicholas to stay with her in London when he traveled there for business, and he did. He invited her to stay with him when she was visiting California.
On October 25, 2005, Nicholas sent Iseppi an email that read in pertinent part: "Cherie, on a personal note, could you provide me with your social security number? Since my mom died and I broke up with Kari, there really isn't too many more people I would want to leave as a beneficiary should something bad happen to me. I've got a cousin who I like alot, but she is 10 years older than me and has more money than I will probably ever have. My intent is to be sure the State does not get any of it. Of course, if I do hook up again, you would still get some of the estate, but not all. [¶] By the way, I have no intent on something bad happening to me in the foreseeable future; however, I want to put someone I really like on my 'Will' and insurance forms, just in case of dumb bad luck."
Iseppi supplied him with her social security number and responded: "I am so touched. I've never been asked or even thought about anything like that ever. I would of course give it to you, and would of course completely understand if you meet someone and would like to change it all. I'm in shock actually. Maybe we can talk more about it if I see you in the states. Or maybe there is something you would one day like to set up as a charity? We could talk about it then too. I've never been given anything, and it feels very strange to just say yes. I understand you don't want the state to have it."
Nicholas replied that he had not thought of it before his mother died, but it was the natural course, and Iseppi wrote back October 30, 2005 that she would accept the offer and still hoped he would find a partner.
The two met up in person that year in California. In December 2005, Nicholas listed Iseppi as the sole beneficiary to his Fidelity mutual fund and on the IRA Beneficiary Designation. He also listed her as the beneficiary on the Linquest Corporation 401(k) and Profit Sharing plan. His IRA Contribution Information forms likewise listed Iseppi as the sole beneficiary from 2005 through 2014, with no contingent beneficiary.
The two continued to correspond over the next 12 years; Iseppi sent Nicholas news from living and traveling abroad, and the two met in person when they could. Eventually, in 2011 Iseppi moved to California, and Nicholas stayed overnight with her family at their Malibu home in 2014.
Lemacher reconnected with Nicholas in 2012. She visited him in 2016, and they spoke by telephone 80 or 90 times between that visit and his death in December 2017.
In February 2016, a new retirement account was opened in Nicholas's name with Vanguard. The document confirming the new account stated that if he did not select a beneficiary and there was no surviving spouse, the assets would pass to his estate.
Nicholas died December 15, 2017. Iseppi filed a petition for probate February 9, 2018. On March 13, 2018, Marlene Jarvis, one of Nicholas's cousins, filed a petition for probate seeking appointment as the estate administrator. The interested parties stipulated to the appointment of Jarvis.
Iseppi filed a creditor's claim for the full estimated value of the estate on the basis that he had told her and promised her he was leaving all his assets to her and making her the sole beneficiary of the estate. Because no will was located, she made her claim based on an oral contract. The administrator rejected the claim, and Iseppi filed a petition for an order enforcing the oral contract, for equitable estoppel, and for a constructive trust. Lemacher, filed a response to Iseppi's petition, and the remaining cousins joined the response.
The matter proceeded to trial in June 2019. Iseppi provided declarations from one of Nicholas's neighbors, David Denmark, from Bradley, and from herself. Lemacher provided photographs of herself with Nicholas as a small child and during her 2016 visit. She also offered a letter from Vanguard explaining that when assets are rolled into an IRA from an employer-sponsored retirement plan, the client receives information about the new account, including the ability to designate a beneficiary. Beneficiaries from the employer-sponsored plan do not automatically carry over to the IRA, and if no designation is noted, the beneficiary is determined according to the account agreement.
The parties stipulated the intestate heirs other than Lemacher did not have knowledge of Nicholas's intentions and would not offer any testamentary evidence.
At trial, the court heard testimony from Iseppi and her father, two of Nicholas's friends who lived in the Midwest, Nicholas's neighbor Denmark, and Lemacher. Iseppi's, Bradley's, and Denmark's testimony was consistent with their declarations.
Iseppi testified that Nicholas spoke often about his home and how her daughter could live there one day, and she understood from him that he would leave her his house. Nicholas never told her he was going to leave his estate to someone other than a partner he might meet in the future. Nicholas also offered to have Iseppi's husband start building mews on the property.
A mew is like an aviary to house the falcons Iseppi's husband worked with.
Iseppi clarified that Nicholas did not use the word "promise" with her, and that she did not promise to do anything in exchange for him leaving the estate to her. She was not able to answer the question as to whether Nicholas benefitted from the promise to leave her the estate, and she conceded that she never told Lemacher that Nicholas had promised to leave her the estate. She explained she did not know Lemacher and did not know her own legal rights when they communicated. Iseppi believed they would find a will in Nicholas's home, but no will was ever located.
Bradley testified that Nicholas told him Iseppi would be well taken care of. When Bradley visited Nicholas for two weeks in May 2017, Iseppi drove Bradley from Los Angeles and stayed a night as well. During that visit, Nicholas told Bradley he planned to leave Iseppi his home.
Nicholas's neighbor Denmark testified that he had spent around five days a week with Nicholas starting in 2012, and they shared a lot of meals. He testified that Nicholas told him that if anything happened to Nicholas, Denmark should contact Iseppi. Nicholas did not mention leaving anything to his cousins; he said everything would go to Iseppi.
Mary Ellen Holle and her husband Robert Charles Holle testified that Nicholas told them over the years that he intended to leave everything to his goddaughter when he died, and he did not plan to leave his money to family. They testified he made this statement at least five times. Their last conversation on the subject was before Nicholas moved to Southern California, where he resided for at least the last 10 years of his life.
At the close of trial, the court heard arguments from Iseppi's attorney. The court commented that it had reservations about whether Iseppi had met her burden of proof of clear and convincing evidence. It explained that the clear and convincing standard set a high burden, that "actions speak louder than words," and that looking at Nicholas's actions, it is not clear and convincing that he made an agreement to leave everything to Iseppi. The court acknowledged that it was undisputed that Nicholas favored Iseppi and said it was his intent to leave her everything, but it found Nicholas's inaction more persuasive. It noted that Nicholas was organized and smart, but he made no will, and his failure to designate a beneficiary despite the reminder to do so indicated his intent was not clear. Instead, had it been Nicholas's wish and intent to leave everything to Iseppi, the court opined he would have taken some action to do that over the 12 years following his 2005 email to her.
With respect to the equity argument, the court explained that it was not going to evaluate who was more deserving of the money. It recognized Nicholas favored Iseppi. But it also noted that there was a lifelong relationship with Lemacher, dating back to Nicholas's childhood and reviving in 2012, after the 2005 email to Iseppi.
The court commented that Iseppi had done nothing in exchange for the inheritance, and she had not relied on the promise. The court concluded that for unjust enrichment to apply, the decedent had to be the party unjustly enriched; otherwise, anyone who received a decedent's assets would be unjustly enriched. And it reiterated that equity did not mean it could determine who or which relationship was worthier of the inheritance.
The court denied Iseppi's petition June 17, 2019. Iseppi timely filed a notice of appeal.
DISCUSSION
A. There is Substantial Evidence that There Was No Promise Enforceable in Equity
Section 21700 reads in relevant part that a contract to make a will can be established by "clear and convincing evidence of an agreement between the decedent and the claimant or a promise by the decedent to the claimant that is enforceable in equity." Iseppi challenges the probate court's decision on the ground that she supplied clear and convincing evidence of a promise to her to leave her the entire estate that is enforceable in equity.
In reviewing the probate court's judgment, we take the clear and convincing standard into account to "determine whether the evidence reasonably could have led to a finding made with the specific degree of confidence required by this standard." (Conservatorship of O.B. (July 27, 2020, S254938) ___ Cal.5th ___ [2020 Cal. LEXIS 4646, *22 (Conservatorship of O.B.).) As we undertake such a review, we consider whether substantial evidence supports the challenged finding. (Ibid.) Substantial evidence is evidence that is reasonable, credible, and of solid value (Estate of Young (2008) 160 Cal.App.4th 62, 76), and, when keeping the clear and convincing standard in mind, also " 'of ponderable legal significance.' " (Conservatorship of O.B., at p. *23.) Moreover, we presume the judgment to be correct (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133), and we view the evidence in the light most favorable to the prevailing party, drawing every reasonable inference in that party's favor. (Jessup Farms v. Baldwin (1983) 33 Cal.3d 639, 660.)
There is no question that Nicholas and Iseppi remained close from the time Iseppi graduated from high school in 1992 until Nicholas's death in 2017. The evidence demonstrates correspondence and visits through the years, despite residing in different parts of the country or world for most of their relationship. It also shows that Nicholas enjoyed Iseppi's company, and he was generous with her, sending birthday cards and gifts, as well as Christmas gifts.
There is also evidence that in 2005 Nicholas intended to make Iseppi a beneficiary for at least some of his estate. Not only did his 2005 email expressly say that, but he made her his sole beneficiary on retirement funds from 2005 through at least 2014. However, in 2016, when Nicholas's employer-sponsored account was rolled into a private account with Vanguard, he did not re-name Iseppi as the beneficiary. The documentation from that account stated that if he did not select a beneficiary and there was no surviving spouse, the assets would pass to his estate. We can infer Nicholas understood what this would mean because he previously referenced a will in 2005, when he commented that he did not want any of his money going to the state in his 2005. He explained in a follow up email that he had not thought of it before his mother died, which further implies that he had become aware of what would happen as a result of his experience with his mother's estate at her death.
While it is clear that Nicholas enjoyed a special relationship with his goddaughter, this does not preclude him from having developed special relationships with others in his life. Evidence demonstrated that Nicholas was close with his cousin Lemacher, with whom he had grown up. They played together throughout their childhood, and their families were close. Although they grew apart during the intervening years when Nicholas was traveling and corresponding with Iseppi, Nicholas reconnected with Lemacher in 2012 after the death of Lemacher's brother. And when Lemacher visited California in 2016, she stayed with Nicholas for a couple weeks. That relationship continued throughout 2016 and into 2017, until Nicholas's death, evidenced by frequent telephone calls between them, including on the night before he died. During the same year that Nicholas failed to add a beneficiary to his IRA, his cousin Lemacher stayed with him. And when Nicholas died, it was Lemacher who the medical examiner contacted, and it was Lemacher who notified Iseppi.
The court considered all the information before it and concluded Iseppi did not meet the clear and convincing standard because evidence of his oral promise was inconsistent with Nicholas's most recent actions. The court explained that Nicholas's failure to even name Iseppi as a beneficiary, given how organized and smart Nicholas was, cast doubt on his intent near the time of his death.
While we are sympathetic to Iseppi, and it is clear from the evidence she presented that she had a special relationship with Nicholas, we are tasked with determining whether there is substantial evidence, even if it is contradicted, to support the court's findings, keeping in mind the clear and convincing standard of review applied by the trial court. (Conservatorship of O.B., supra, 2020 Cal. LEXIS 4646, at pp. *22-24; Lenk v. Total-Western, Inc. (2001) 89 Cal.App.4th 959, 968.) Here, there is evidence that calls Nicholas's intent into question: his revived relationship with Lemacher beginning in 2012 and allowing Iseppi's designation as a beneficiary on retirement benefits to lapse from his retirement paperwork in 2016. The evidence also suggested Nicholas understood the importance of a will because his 2005 email to Iseppi identified his desire to prevent his estate from passing to the state, and to include her in his will. Yet, there is no evidence he took any action during the 12 years following that email to ensure that Iseppi would inherit his estate. Accordingly, we must affirm the court's findings on this point. B. Section 21700 Requires the Promise to be Enforceable in Equity Without Limitation to the Equitable Theory
Given our conclusion that there is substantial evidence supporting the probate court's conclusion that Iseppi failed to meet her burden of proof that there was clear and convincing evidence of a promise by the decedent, we need not consider whether unjust enrichment is a viable equitable theory under section 21700. However, were we to do so, we would conclude it is. Despite this conclusion, we would nonetheless affirm the probate court's order on this point as well, because Iseppi did not offer evidence that the intestate heirs were unjustly enriched.
The parties disagree about the scope of equitable principles applicable under section 21700. Section 21700, subdivision (a)(4) explains that a contract to make a will or devise or other instrument, or to not do so, can be established by "[c]lear and convincing evidence of an agreement between the decedent and the claimant or a promise by the decedent to the claimant that is enforceable in equity." Focusing on the second part of the subdivision, Iseppi argues section 21700 does not exclude unjust enrichment because it does not specify the equitable theories applicable. She contends she provided evidence of unjust enrichment by the intestate heirs. Lemacher argues first that unjust enrichment is not available under section 21700 and further that Iseppi has not demonstrated unjust enrichment because Nicholas did not benefit from his promise.
The interpretation of a statute is a question of law, subject to de novo review. (Goodman v. Lozano (2010) 47 Cal.4th 1327, 1332.) Our primary task is to "determine and effectuate legislative intent" by looking to the statute's language. (Woods v. Young (1991) 53 Cal.3d 315, 323.) We give words their plain and commonsense meaning. (Murphy v. Kenneth Cole Productions, Inc. (2007) 40 Cal.4th 1094, 1103.) "[W]hen the statute's language is ambiguous or susceptible of more than one reasonable interpretation, [the court may] turn to extrinsic aids to assist in interpretation." (Ibid.) Moreover, "[w]here a statute is theoretically capable of more than one construction we choose that which comports with the intent of the Legislature." (California Mfrs. Assn. v. Public Utilities Com. (1979) 24 Cal.3d 836, 844.)
To prove the existence of a contract to make a will under section 21700, subdivision (a)(4), the claimant must prove both that there is clear and convincing evidence of a promise and that such a promise would be enforceable in equity. The provision itself does not place any restrictions on the equitable theory of enforcement.
Although the legislative history points to then-existing application of equitable theories, it does not restrict the equitable theories available, and its reasoning underscores why the broader language of the statute mirrors the intent of the Legislature. Assembly Bill No. 1491 was initially introduced to address concerns surrounding conservatorships. (Legis. Counsel's Dig., Assem. Bill No. 1491 (1999-2000 Reg. Sess.) Summary Dig., Feb. 26, 1999.) After it was amended to add section 21700, the initial Assembly analysis explained the bill was "technical in nature" and "designed to bring various probate code provisions in conformity with recent case developments." (Assem. Com. on Judiciary, Analysis of Assem. Bill No. 1491 (1999-2000 Reg. Sess.) as amended Jan. 3, 2000, p. 3.) It explained that then-existing section 150 prohibited oral contracts, but a number of courts had refused to strictly apply that rule, instead applying equitable theories like promissory estoppel and quasi-specific performance, concluding the statute of frauds did not defeat a claim to an oral agreement when there was an equitable theory. (Assem. Com. on Judiciary, Analysis of Assem. Bill No. 1491, at p. 4.) Section 8 of the bill reflected those court rulings by stating the language of the provision would be consistent with the law as it existed at the time of the revision. (Ibid.)
Legislative analysis from the Senate specified that the new bill "would reflect these judicially created exceptions to the traditionally common law statute of frauds rule that contracts to make a will must be in writing. Thus, under this bill (the new Probate Code Section 21700), a claimant may enforce an oral agreement as long as he or she can produce clear and convincing evidence of the promise or agreement made by the decedent." (Sen. Com. on Judiciary, Analysis of Assem. Bill 1491 (1999-2000 Reg. Sess.) as amended Mar. 23, 2000, cmt. 6, pp. 12-13.) It cited to several cases that applied equitable estoppel principles to permit enforcement of an oral agreement when there had been detrimental reliance or unjust enrichment. (Ibid.; see Estate of Housley (1997) 56 Cal.App.4th 342, 351-352 (Housley) [applying principles of equitable estoppel via unjust enrichment and detrimental reliance to reverse summary judgment]; Byrne v. Laura (1997) 52 Cal.App.4th 1054, 1072 (Byrne) [evidence of serious change of position and unconscionable injury sufficient to reverse summary adjudication]; Estate of Brenzikofer (1996) 49 Cal.App.4th 1461, 1467, 1469 (Brenzikofer) [detrimental reliance as basis for reversing summary judgment]; Juran v. Epstein (1994) 23 Cal.App.4th 882, 892 (Juran) [unjust enrichment of newly designated beneficiary of a surviving testator].) Thus, at the time section 21700 was enacted, unjust enrichment was an equitable theory available to claimants, and it was incorporated by section 21700.
Lemacher notes that the law at the time focused on equitable doctrines that contemplated the behavior of the decedent, and in each of the cited cases, the complainant had detrimentally relied on the decedent's promise, resulting in unjust enrichment to the promisor or decedent. That assessment is broadly accurate. (Housley, supra, 56 Cal.App.4th at p. 347 [decedent promised to leave property upon his death to his son, who stayed with and cared for his father for nearly 30 years only because father asked for and needed the help]; Byrne, supra, 52 Cal.App.4th at pp. 1060-1061 [claimant was responsible for all cooking, cleaning, laundry, shopping, and caring for cohabitant in exchange for promise to "take care of her" for the rest of her life]; Brenzikofer, supra, 49 Cal.App.4th at pp. 1464-1465 [claimants sought conveyance of a house they were renting from decedent based on oral agreement to transfer title in return for 26 years of care claimants provided in reliance of the promise]; Juran, supra, 23 Cal.App.4th at pp. 887, 889, 897 [wife agreed to leave everything to husband should she predecease him in exchange for promise that husband would divide remainder of estate among her three children, but he revoked will and left nothing to her children].)
In the cases cited by the legislative analysis, the promisor was unjustly enriched by some change in position or detrimental reliance by the promisee. Iseppi could not identify any way that Nicholas was unjustly enriched by his alleged promise to leave her his entire estate. And she acknowledged that she did not behave differently than she otherwise would have were he to not have made the promise. For this reason, Lemacher maintains that Iseppi has not demonstrated any basis for equitable estoppel.
However, unjust enrichment as a theory does not limit its application to situations in which the promisor is the unjustly enriched party. Unjust enrichment is not limited generally to situations in which the promisor is unjustly enriched. (Melchior v. New Line Productions, Inc. (2003) 106 Cal.App.4th 779, 793 [Unjust enrichment is " ' "a general principle, underlying various legal doctrines and remedies" ' "].) Iseppi contends this is one of those situations.
Some case law supports application of the equitable theory to unjustly enriched third parties in the probate context; however, those cases generally involve wrongful behavior. For example, in Day v. Greene (1963) 59 Cal.2d 404, 411, our Supreme Court explained unjust enrichment may occur when "property has been obtained through actual fraud, violation of a confidential relationship, or breach of trust." (Ibid.) There, the decedent orally agreed with his then-wife that he would leave her everything in her lifetime and upon her death, and in exchange she would provide for his daughter in the same way she provided for her children. (Id. at p. 408) The court concluded the wife breached the oral agreement and "unjustly enriched her children by disposing of her residuary estate solely for their benefit." (Ibid.) Because an "unconscionable injury would result from denying enforcement after one party [was] induced to make a serious change of position in reliance on the contract" and "unjust enrichment would result if the party who has received the benefits of the other's performance were allowed to invoke the statute [of frauds]," the court concluded equitable estoppel existed. (Id. at p. 410.)
There was detrimental reliance on the part of the promisee in this situation because the decedent relied on this promise when he abstained from making inter vivos testamentary dispositions to his daughter and left his entire estate to his wife. (Day v. Green, supra, 59 Cal.2d at p. 408.) The daughter also detrimentally relied on the wife's promise by declining to make claims to her father's estate under the belief the wife would follow through with her promise. (Ibid.)
Unjust enrichment by the party receiving the decedent's estate also occurs when the recipient of the property has behaved tortiously or criminally. (See Prob. Code, § 258 [prohibiting transfer of title to a party convicted of murder or manslaughter]; Civ. Code, § 2224 [naming person who "gains a thing by fraud, accident, mistake, undue influence, the violation of a trust, or other wrongful act" as an "involuntary trustee of the thing gained"]; Abbey v. Lord (1959) 168 Cal.App.2d 499, 505 [stating unjust enrichment applicable when title to property acquired by fraud, duress, or undue influence].)
However, Iseppi does not contend that any of the defendants—or the promisor—behaved in a tortious or criminal manner. Thus, this does not support the application of unjust enrichment here. Instead, Iseppi argues that policy considerations drive the determination of what constitutes unjust enrichment, and she notes that receipt of a benefit due to mistake may dictate "the person making the mistake assume the risk of the error" (First Nationwide Savings v. Perry (1992) 11 Cal.App.4th 1657, 1663), implying Nicholas mistakenly failed to leave her the estate in writing. Mistake can play a role in determining unjust enrichment in the probate context, but it is not applicable here because those situations involve written wills that clearly and specifically establish the testator's intent.
For example, in Estate of Duke (2015) 61 Cal.4th 871, the Supreme Court explained: "In cases in which clear and convincing evidence establishes both a mistake in the drafting of the will and the testator's actual and specific intent at the time the will was drafted, it is plain that denying reformation would defeat the testator's intent and result in unjust enrichment of unintended beneficiaries." (Id. at p. 890.) The Supreme Court explained that reformation was the appropriate action in those cases because the burden of clear and convincing evidence of both the mistake and the actual and specific intent of the testator at the time the will was drafted would safeguard against baseless claims. (Ibid.) However, this conclusion relates to construing the terms of a will consistently with the subjective intent of the decedent (ibid.), and here there is no will.
Iseppi's mistake argument is unclear. She does not actually argue anyone made a mistake—not the decedent nor the intestate heirs. Instead, she argues that because Nicholas failed to make a will and the heirs had "full knowledge" of his intent for Iseppi to inherit, they should be divested of their intestate inheritance. But Iseppi points to no evidence to support this understanding of what occurred. She offers no evidence that Nicholas told Lemacher he planned to leave everything to Iseppi, and she herself did not share this information with Lemacher even after Nicholas's death. As explained ante, there is substantial evidence to support the probate court's conclusion that there was not clear and convincing evidence of Nicholas's intent at the time of his death.
Finally, Iseppi asks us to interpret the word "unjust" in this context as any distribution of wealth that is not consistent with the decedent's intent. However, to do so would read the equitable requirement out of the statute because once a complainant were to demonstrate by clear and convincing evidence that there was a promise to transfer the estate to the claimant, essentially establishing intent, that would be enough to demonstrate that transfer to any other party would be unjust. While this seems consistent with what happened in Duke at first blush, that case is distinguishable because there was clear and convincing evidence of both a mistake and the testator's intent in a written will. The same is not so here.
Accordingly, while we recognize that unjust enrichment could provide a theory for application of equitable estoppel under section 21700, we conclude this is not one of those situations.
DISPOSITION
The order is affirmed. Parties to bear their own costs on appeal.
HUFFMAN, J. WE CONCUR: BENKE, Acting P. J. IRION, J.