Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Superior Court County of Ventura, Fred H. Bysshe, Judge, Super. Ct. No. CIV234247
Freund & Brackey; Thomas A. Brackey II, Craig A. Huber and Jonathan D. Freund, for Appellant.
Gradstein & Luskin, Henry Gradstein. Liner, Yankelevitz, Sunshine & Regenstreif; Charles M. Grant and Enid M. Colson, for Respondent.
YEGAN, Acting P.J.
A. Edward Ezor, the personal representative of the estate of Artie Shaw, appeals the judgment, by jury, that Shaw breached a contract to leave one-half of his estate to his former wife, Evelyn Keyes. He contends there was no breach of contract because the contract was revoked by operation of law when the couple divorced. Ezor further contends there is no substantial evidence to support the jury's findings that Keyes met her obligations under the contract, that the contract was not modified, that Keyes did not waive her rights under the contract and that Keyes did not exercise undue influence. Ezor contends the trial court abused its discretion in a number of evidentiary rulings and that the complaint is time-barred. We affirm.
Facts
Celebrated musician Artie Shaw married actress Evelyn Keyes in 1957. Although the couple separated in 1970, they did not divorce until 1985. In a letter dated November 19, 1976, Shaw and Keyes memorialized an agreement they had reached with respect to certain financial matters. Shaw was involved in several lawsuits which he financed with Keyes' money. In the letter, Shaw agreed to pay Keyes $150,000 or 50 percent of the proceeds of these lawsuits, whichever was greater. The letter further states: "We have both made wills in which we leave our entire estate to each other; under this agreement, neither of us shall have the right to make any change that leaves the other anything less than one-half of his or her entire estate without the written consent of the other." Both Shaw and Keyes signed the letter.
On December 8, 1976, the parties signed another agreement pursuant to which Keyes executed a quit claim deed to Shaw's home and he relinquished any claim he might have to Keyes' real property. The parties further acknowledged, "We both understand and agree, of course, that none of the above is intended as a modification of our present financial agreement of Nov. 19, 1976, and that our present financial agreement shall therefore be the determining document in the event of any conflict between the two."
Shaw died in 2004. His will left $30,000 in jewelry to Keyes. Shaw did not leave her half of his estate, which was valued at $2,900,000. Acting through her conservator, Keyes filed this complaint against Shaw's personal representative, A. Edward Ezor, for breach of the November 1976 contract and imposition of a constructive trust. After a five-day trial, the jury found in favor of Keyes, awarding her $1,420,000.
Contentions
Appellant contends the trial court erred in entering judgment in favor of Keyes because, as a matter of law, the November 19, 1976 letter was not a contract to make a will that left one-half of his estate to Keyes. If it was, appellant maintains the contract was not breached because Shaw made the required will but it was revoked by operation of law when the parties divorced in 1985. (Prob. Code, § 6122.) Appellant contends that Keyes cannot enforce the contract because she breached it herself. He further contends that Keyes failed to overcome the presumption she obtained the November 19, 1976 contract through undue influence, that the trial court erred in certain evidentiary rulings and that the complaint was not timely filed. None of these contentions has merit.
Discussion
Contract to Make a Will
Appellant contends the trial court erred as a matter of law because the November 19, 1976 letter is not a contract to make a will. It is, instead, a contract not to make changes to an existing will. Shaw did not breach that contract, appellant maintains, because the will referred to in the November 19, 1976 letter was revoked by operation of law when the parties' divorce was final in 1985. (Prob. Code, § 6122.) Respondent contends there is no distinction between a contract to make a will and one to leave an existing will unchanged. She contends Probate Code section 6122 is irrelevant because it applies to wills, not contracts. We agree.
Shaw's promise not to "make any change that leaves [Keyes] less than one-half of his . . . estate without [her] written consent . . . [,]" was the functional equivalent of a promise to make a will leaving half of his estate to Keyes. (Shive v. Barrow (1948) 88 Cal.App.2d 838, 843 ["An agreement not to revoke an existing will is, in effect, the same as an agreement to make a will . . . ."].) " 'Where the parties contract to make a particular disposition of property by will, the agreement necessarily includes a promise not to breach the contract by revoking the will and failing to dispose of the property as agreed. The rights of the parties depend upon the contract, and the revocation of the will or other breach of the contract does not prevent the intended devisee or legatee from enforcing the contractual obligations. [Citations.]' (Italics added; Brown v. Superior Court, [(1934)] 34 Cal.2d 559, 564-565 [212 P.2d 878], see Brewer v. Simpson, [(1960)] 53 Cal.2d 567, 588-589, Redke v. Silvertrust, [(1971)] 6 Cal.3d 94, 100-101 [98 Cal.Rptr. 293, 400 P.2d 805].)" (Crail v. Blakely (1973) 8 Cal.3d 744, 750.) Shaw breached the contract by failing to make the agreed upon disposition of his property in the will that was in effect at the time of his death. (Goldstein v. Hoffman (1963) 213 Cal.App.2d 803, 811-812.)
Effect of Probate Code § 6122
Relying on Probate Code section 6122, appellant contends that the dissolution of the parties' marriage revoked Shaw's will by operation of law. Shaw did not breach the contract, appellant contends, because the will was automatically revoked without Shaw making any changes to it. We are not persuaded. Probate Code section 6122 provides: "(a) Unless the will expressly provides otherwise, if after executing a will the testator's marriage is dissolved or annulled, the dissolution or annulment revokes all of the following: [¶] (1) Any disposition or appointment of property made by the will to the former spouse . . . ." The statute operates automatically to revoke a will in favor of a former spouse. (Estate of Reeves (1991) 233 Cal.App.3d 651, 659.) But it applies only to a will, not to a contract to make a will. Thus, the revocation of Shaw's will, by operation of law or otherwise, did not revoke his independent contractual obligation to leave no less than one-half of his estate to Keyes. (Brown v. Superior Court (1949) 34 Cal.2d 559, 564-565.) The contract obligated Shaw to reinstate his former will after the dissolution, or to execute another will complying with its terms. Because he died without doing so, he breached the contract. (Id. at p. 565.)
Instructional Error
Appellant contends the trial court prejudicially erred when it instructed the jury that the parties' divorce had "no legal effect on the November 19, 1976 letter agreement." According to appellant, the divorce had an effect on the letter agreement because it revoked the parties' wills by operation of law, without Shaw making any changes to his prior will. We reject this argument for the reasons stated above.
Respondent's Breach
Substantial evidence supports the jury's finding that Keyes met her obligations under the November 1976 agreement. The agreement states, "We have both made wills in which we leave our entire estate to each other . . . ." At the time the agreement was made, Shaw had such a will but there is no evidence that Keyes did. Appellant contends this was a breach that forecloses Keyes from enforcing the contract. We disagree. The evidence demonstrated that Keyes has made several wills since 1976, each of which purports to leave Shaw one-half of her estate. Moreover, a contract to make a will is not breached until the promisor dies without having made the required will. (In re Marriage of Edwards (1995) 38 Cal.App.4th 456, 460-461.)
Waiver
Appellant contends Keyes waived her rights under the November 1976 contract when she consented to the 1985 divorce, knowing that dissolution of the marriage would revoke Shaw's will by operation of law. We reject this argument for reasons stated above: the parties' contract created rights independent of their wills and was not revoked by their divorce. Moreover, there was evidence that Keyes considered the November 1976 agreement to be in force even after divorce proceedings were underway. In 1984, she declined to sign "divorce papers" prepared by appellant because she thought they would change her status under the November 1976 agreement. She subsequently wrote several letters to Shaw, reminding him of his obligations under the November 1976 agreement and she wrote three wills leaving Shaw one-half or more of her estate. This is substantial evidence that Keyes did not waive compliance with the November 1976 agreement.
Undue Influence
A presumption of undue influence arises where a contract between spouses gives one spouse an advantage over the other. (Fam, Code, § 721; In re Marriage of Haines (1995) 33 Cal.App.4th 277, 301.) Appellant contends there is no substantial evidence to support the jury's finding that Keyes rebutted this presumption. We disagree. The evidence demonstrated that Shaw prepared the November 1976 agreement and presented it to Keyes. A jury could reasonably rely on this evidence to infer there was no undue influence because Shaw, who needed Keyes' cash to finance his various lawsuits, "freely and voluntarily" made the November 1976 agreement, "with a full knowledge of all the facts and with a complete understanding" of its terms. (In re Marriage of Matthews (2005) 133 Cal.App.4th 624, 631.) Moreover, the contract provided for mutual wills which, by virtue of their mutuality, give neither party an advantage over the other. (See e.g., Brewer v. Simpson (1960) 53 Cal.2d 567, 589-590.) The finding that Keyes did not gain an unfair advantage over Shaw through the November 1976 agreement was supported by substantial evidence.
Evidentiary Issues
The trial court relied on Evidence Code section 352 to exclude evidence that Keyes' conservator, Allan Glaser, is the primary beneficiary of her trust and stands to benefit from a judgment in her favor. It concluded the probative value of the evidence was substantially outweighed by its potential for unfair prejudice. Appellant contends this ruling was in error. We disagree.
The trial court has broad discretion to determine whether the probative value of evidence is outweighed by its potential for unfair prejudice. We will not disturb its rulings absent a showing that the trial court acted arbitrarily, capriciously or in a "patently absurd manner resulting in a manifest miscarriage of justice." (Boeken v. Philip Morris, Inc. (2005) 127 Cal.App.4th 1640, 1685.) There has been no such showing. Although the trial court excluded evidence of Glaser's potential economic interest in the case, the jury heard that Glaser had a long-term, very close friendship with Keyes and that he managed her finances and her medical care. Thus, the trial court admitted plenty of evidence relevant to Glaser's bias in favor of Keyes. We cannot say that its order excluding additional evidence of bias resulted in a miscarriage of justice.
Appellant contends the trial court abused its discretion by allowing respondent to show a five-minute video featuring clips from Keyes' film and stage career because it had no probative value. Even if the video was irrelevant its admission cannot be said to have resulted in a miscarriage of justice.
Finally, appellant contends the trial court erred in admitting the November 1976 letter agreement into evidence because the document was not authenticated. The argument has been waived. Appellant stipulated that, "Decedent Shaw and Plaintiff Keyes signed the Letter Agreement dated November 19, 1976, a true and correct copy of which is attached hereto as Exhibit A." This is sufficient to establish conclusively the authenticity of the document. (Evid. Code, establish the authenticity of the document. (Evid. Code, §1415; Spindell v. State Bar of California (1975) 13 Cal.3d 253, 260.)
Timeliness
We also reject appellant's argument that Keyes' claim is time-barred. Appellant contends that the will referred to in the November 1976 agreement was revoked by operation of law when the parties' divorce became final in 1985. He contends Keyes' cause of action for breach of the agreement accrued in 1985, because Shaw was in breach as soon as the will was revoked. Appellant is incorrect. A contract to make a will is breached when the promisor dies without having made the will required by the contract. (In re Marriage of Edwards, supra, 38 Cal.App.4th at pp. 460-461.) Keyes filed her complaint within four years of Shaw's death and the complaint was, therefore, timely. (Code Civ. Proc., § 337.)
Conclusion
The judgment is affirmed. Costs to respondent.
We concur: COFFEE, J., PERREN, J.