Legal News and Appellate Tips

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.

So you think you understand legal presumptions? Well, do you know the difference between a presumption that affects the burden of production, and one the affects the burden of proof?

If not, do not feel too bad. The trial judge in Felix v. People of California (D5 Jun. 8, 2021) no. F080255 (non-pub.) didn't understand the difference, either.

A defendant moved to set aside a default judgment, submitting a declaration stating he never received the summons and complaint. The trial court held this did not overcome the legal presumption of receipt.

Reversed: That presumption, affecting only the burden of production, disappeared when the defendant submitted his declaration.

Presumptions affecting "the burden of producing evidence" are different from those affecting the "burden of proof." The former just tells you who has to get the ball rolling in terms of putting on evidence, but does not otherwise express any public policy about how the fact question should come out.

TVA appellate attorney Tim Kowal publishes this weekly update of legal news for trial attorneys. In this edition, Covid-based excuses may garner extended appellate deadlines.