Opinion
G055317
11-28-2018
SVEND MEJDAL, JR., Plaintiff and Appellant, v. BYRON KOHN, Defendant and Respondent.
Loeb & Loeb and Rodney C. Lee for Plaintiff and Appellant. Baker, Olson, Lecroy & Danielian and Arbella Azizian for Defendant and Respondent.
ORDER MODIFYING OPINION; NO CHANGE IN JUDGMENT
It is ordered that the opinion filed on November 28, 2018, be modified as follows:
On page 4, in the fourth full paragraph, delete the first sentence, and replace it with the following:
"In this case, the court issued an order in August 2015 finding that Alan died intestate, and there was no dispute Mejdal told Byron that Mejdal had a copy of the purported will in November 2015."
In the third and first paragraphs on pages 5 and 6, the words "son" is changed to "father" and "father" to "son."
This modification does not change the judgment.
THOMPSON, J. WE CONCUR: FYBEL, ACTING P. J. IKOLA, J.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 30-2014-00748054) OPINION Appeal from an order of the Superior Court of Orange County, Kim R. Hubbard, Judge. Affirmed. Loeb & Loeb and Rodney C. Lee for Plaintiff and Appellant. Baker, Olson, Lecroy & Danielian and Arbella Azizian for Defendant and Respondent.
* * *
This case concerns the estate of Alan Kohn. Unable to locate a will, Alan's brother, Byron Kohn, filed a petition for letters of administration and published notice of it pursuant to the Probate Code. After the probate court appointed Byron administrator of the estate and reviewed the final report he prepared in that role, it ordered a final distribution by which Byron received all property of the estate. Months later, Svend Mejdal, Jr., Alan's godson, came forward with a copy of a will purportedly executed by Alan 40 years earlier; which ostensibly left half of the estate to Mejdal.
We refer to certain parties by first name to avoid confusion. No disrespect is intended.
Mejdal filed a petition to probate the will. Following a bench trial, however, the probate court concluded the petition to probate the will was not timely under Probate Code section 8226, subdivision (c). Mejdal challenges that conclusion, arguing the deadlines specified in the statute do not apply because he never "received notice" of Byron's petition for letters of administration. We disagree and affirm.
All further statutory references are to the Probate Code.
FACTS
After Alan, passed away, Byron filed a petition for letters of administration. Believing Alan did not have a will, Byron alleged Alan died intestate and asked the court to appoint Byron administrator of the estate. And because he was not aware of any heirs, beneficiaries or others who needed to be served by mail, Byron published notice of the petition for letters of administration as required by the Probate Code.
The court appointed Byron administrator of Alan's estate, and about eight months later it issued an order approving Byron's final administrator report. The court found that notice of the hearing on Byron's petition for letters of administration was "given as required by law" and Alan died intestate. Accordingly, it ordered all property of the estate—valued at a total of approximately $2.8 million—be distributed to Byron.
A few months later, Mejdal contacted Byron's attorney to notify him that Mejdal had a copy of a will purportedly signed by Alan in 1975. The will gave Mejdal one-half of Alan's estate. It later came to light that Mejdal obtained the copy of the will from his mother, who in turn received the copy from Alan. Mejdal's mother knew Byron was handling the probate of Alan's estate and was aware Byron could not locate a will, but she did not tell Byron about the will.
Mejdal filed a petition to probate the will and for letters of administration appointing him administrator. The matter went to a bench trial on two issues: (1) whether Mejdal's petition was timely; and (2) whether the original will, of which Mejdal had only a copy, was destroyed by Alan with the intent to revoke it.
The probate court found in Byron's favor. It concluded Mejdal, as Alan's godson, was not entitled to notice of Byron's petition by personal or mail service. Rather, notice by publication, which Byron provided, was sufficient. And because Mejdal did not file his petition to probate the will before the applicable statutory deadline, the court concluded Mejdal's petition was untimely and had to be denied.
DISCUSSION
Mejdal contends the probate court erred in concluding his petition was not timely filed. He argues the filing deadlines specified in section 8226, subdivision (c), do not apply because he did not receive notice of Byron's petition by mail or personal delivery. Additionally, he challenges "comments" the court made in its order concerning whether the will, if it were admitted, could alter the prior distribution of Alan's estate. We find no error in the court's determination that Mejdal's petition was untimely.
Section 8226 provides, in relevant part: "(b) Subject to subdivision (c), a will may be admitted to probate notwithstanding . . . prior distribution of property in the proceeding. The will may not affect property previously distributed, but the court may determine how any provision of the will affects property not yet distributed and how any provision of the will affects provisions of another will.
"(c) If the proponent of a will has received notice of a petition for probate or a petition for letters of administration for a general personal representative, the proponent of the will may petition for probate of the will only within the later of either of the following time periods:
"(1) One hundred twenty days after issuance of the order admitting the first will to probate or determining the decedent to be intestate.
"(2) Sixty days after the proponent of the will first obtains knowledge of the will." (Italics added.)
In this case, there was no dispute Alan died intestate in August 2015, and Mejdal told Byron that Mejdal had a copy of the purported will in November 2015. Assuming, arguendo, Mejdal discovered the will immediately before he told Byron about it, the later of the two dates calculated pursuant to section 8226, subdivision (c), would be February 2016. But Mejdal did not file his petition until March 2016. So, the trial court correctly concluded Mejdal's petition to probate the will was filed at least a month late.
Mejdal asserts section 8226, subdivision (c) does not apply because he never "received notice" of Byron's petition. We disagree. Subdivision (c), speaks of "notice," not any particular kind of notice, and the Probate Code provides two methods of notice for a petition for administration. The first method, by publication, is always required. (§ 8120; Estate of Buckley (1982) 132 Cal.App.3d 434, 449.) Through publication, "'the entire world is called before the court, and the court acquires jurisdiction over all persons for the purpose of determining their rights to any portion of the estate . . . .'" (Parage v. Couedel (1997) 60 Cal.App.4th 1037, 1042 (Parage).) Whether a person actually sees the published notice is immaterial. (Id. at p. 1044.)
Section 8120 states: "In addition to service of the notice of hearing as provided in Article 2 (commencing with [s]ection 8110), notice of hearing of a petition for administration of a decedent's estate shall also be published before the hearing in the manner provided in this article."
The second method of giving notice, by mail or personal delivery, is only required if (a) there are one or more heirs known to, or reasonably ascertainable by, the petitioner; and/or (b) there is a will being offered in conjunction with the petition which specifies devisees, an executor and/or an alternative executor. (§§ 1215, 8110.)
Section 8110 provides: "At least 15 days before the hearing of a petition for administration of a decedent's estate, the petitioner shall deliver notice of the hearing pursuant to [s]ection 1215 on all of the following persons: [¶] (a) Each heir of the decedent, so far as known to or reasonably ascertainable by the petitioner. [¶] (b) Each devisee, executor, and alternative executor named in any will being offered for probate, regardless of whether the devise or appointment is purportedly revoked in a subsequent instrument."
Here, Mejdal received notice of Byron's petition for administration by publication under section 8120. Nothing more was required. Section 8110 did not apply because (a) Mejdal was not an heir known to or reasonably ascertainable by Byron, and (b) Byron's petition did not offer a will for probate. The contrary conclusion urged by Mejdal—that notice by mail or personal delivery was required—ignores the plain and unambiguous language of section 8226, subdivision (c). (See Estate of Earley (2009) 173 Cal.App.4th 369 (Earley) [plain unambiguous meaning of statute controls].)
The cases cited by Mejdal are equally unavailing. Estate of Kelly (2009) 172 Cal.App.4th 1367 (Kelly), is factually inapposite and, even so, does not espouse the rule of law he claims. In Kelly, the decedent's son was appointed administrator of the estate. (Id. at pp. 1370-1371.) A couple of months later, a bank notified him about a holographic will which purported to leave the entire estate to the bank. (Id. at p. 1371.) Thereafter, the bank petitioned the court to admit the will to probate, revoke the order appointing the son as the administrator and appoint a new administrator. (Ibid.) When the son filed the final report as administrator one month later, a report which claimed his father died intestate, the bank opposed it and petitioned to probate the will. (Ibid.)
The son argued the petition was untimely under section 8226, subdivision (c) because the bank was "aware the estate was being administered as an intestate estate." (Kelly, supra, 172 Cal.App.4th at p. 1372.) But the appellate court disagreed, finding awareness, alone, was not enough. Rather, "[f]ocusing on the words of the statute and applying well-known rules of statutory construction, [it explained] that section 8226(c) applies only to those who have received notice of the petition for letters of administration pursuant to the notice provisions of the Probate Code." (Id. at p. 1375, italics added.)
Thus, contrary to Mejdal's assertion, the Kelly court did not conclude notice by mail or personal delivery is required in every case. Instead, it was required based on the specific facts in that case, namely the bank (unlike Mejdal) was a known heir entitled to personal or mail delivery under section 8110. Unsurprisingly, it appears the Kelly court was not asked to confront and, in fact, did not even discuss the effect of notice by publication—the issue squarely before us. (Robinson v. Grossman (1997) 57 Cal.App.4th 634, 643 [case cannot stand for proposition neither discussed nor analyzed].)
Further, our conclusion that notice by mail or personal delivery under section 8110 was not required in this case does not conflict with In re Estate of Walker (1911) 160 Cal. 547 (Walker), another case relied upon by Mejdal. Walker merely held that final distribution of property in an intestate probate proceeding does not preclude the later admission of a will, to enable those who may take under it to "prosecute their rights in equity." (Id. at p. 549.) The right to probate a later will is embodied in subdivision (b) of section 8226. By section 8226, subdivision (c), however, the Legislature put a time limit on the assertion of that right. And, today, we simply interpret and apply that time limit.
Section 8226, subdivision (b) provides, in full: "Subject to subdivision (c), a will may be admitted to probate notwithstanding prior admission to probate of another will or prior distribution of property in the proceeding. The will may not affect property previously distributed, but the court may determine how any provision of the will affects property not yet distributed and how any provision of the will affects provisions of another will." --------
Adopting Mejdal's contrary interpretation would run afoul of our obligation "'to avoid a construction that would lead to unreasonable, impractical, or arbitrary results'" (Earley, supra, 173 Cal.App.4th at p. 375). Unknown and not reasonably ascertainable heirs could seek to probate a will at any time—even decades after a final distribution. Administrators and those inheriting from the estate would never be assured of finality. Such an outcome is absurd and runs contrary to the policy of providing finality concerning title to a decedent's property.
In sum, Byron was not required to give Mejdal notice of his petition by mail or personal delivery under section 8110 because Mejdal was not an "heir" known to or reasonably ascertainable by Byron. Instead, by publication under section 8120, Mejdal received notice of the petition for letters of administration, thereby triggering the time limits specified in section 8226, subdivision (c). (Parage, supra, 60 Cal.App.4th at p. 1042.) Therefore, Mejdal's petition to probate the will was untimely. In light of this holding, we need not address Mejdal's challenge to the court's comments about whether the will, if admitted, could alter the prior distribution of Alan's estate.
DISPOSITION
The order is affirmed. Respondent is entitled to his costs on appeal.
THOMPSON, J. WE CONCUR: FYBEL, ACTING P. J. IKOLA, J.