A will must be signed by two witnesses. The decedent didn’t do that in Coronado v. Berger (D2d2 May 25, 2023 No. B321347) --- Cal.Rptr. 3d --- (2023 WL 3675787). But there is an exception if the petitioner proves, by clear and convincing evidence, that the decedent intended the document as a will. And here, the letter identified the beneficiary and executor, was written on letterhead and recited the testator’s sound mind and good health, along with the testator’s full name, address, and social security number. And the testator emailed the beneficiary about it the next day.
The probate court didn’t buy it, probably because the testator and beneficiary were only romantically involved for a short time and then broke up a short time later. But the Court of Appeal reversed in an opinion that basically asks, “what more could you ask for?” The probate court pointed to the fact that the relationship between the testator (a trans woman) and the beneficiary (a woman) was only six-months old at the time and had fallen apart a few months later. But “it is not for the courts to act in a parens patriae role over competent adults by second-guessing the wisdom of their personal decisions.”
And what happens after a will is executed is not probative of the testator’s intent at the time of execution.
Takeaway: What is noteworthy about this case is that the petitioner had a heavy burden in the probate court, making her burden in the appellate court all-but-impossible. “[W]e can reverse only if we conclude that the evidence below as a matter of law compels a finding by clear and convincing evidence” that the testator intended the letter as a will.
And yet she succeeded. The two takeaways from this published opinion reversing on a factual finding on the issue of testamentary intent are (1) the wisdom of the bequest is irrelevant; and (2) acts subsequent to execution are irrelevant. If a probate court relies solely on irrelevant evidence like this, and the balance of the evidence supports a testamentary intent, then maybe the court will reverse.
But it’s still a long shot.
Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes summaries of cases and appellate tips for trial attorneys at www.tvalaw.com/articles. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.
Get “Not To Be Published,” a weekly digest of these articles, delivered to your inbox by subscribing here: https://tvalaw.com/california-appellate-newsletter.**