Opinion
B203978 B205885
7-22-2009
Estate of LEMUEL DETIEGE, Deceased. MICHAEL E. JACKSON, Petitioner and Appellant, v. MELVIN E. JACKSON, Individually, and as Administrator, etc., Objector and Respondent.
Vogt & Resnick, David A. Sherak and Jack Smart for Petitioner and Appellant. Lee B. Ackerman for Objector and Respondent Melvin E. Jackson, as an individual; and James D. Murray for Objector and Respondent Melvin E. Jackson, as Administrator of the Estate of Lemuel Detiege.
Not to be Published in the Official Reports
I.
INTRODUCTION
Over her lifetime, decedent Lemuel Detiege executed a number of wills. After she died, her son objector and respondent Melvin E. Jackson, petitioned the court to have decedents estate pass intestate based upon information that decedent had destroyed her last will dated October 24, 1997. Petitioner and appellant Michael E. Jackson, M.D., is respondents son and decedents grandson. Appellant challenges two orders of the probate court that result in respondent obtaining decedents entire estate. Appellant contends that because there was extrinsic fraud the probate court should have set aside its order finding that decedent died intestate. Appellant also contends that the probate court should have entertained his motion to probate the October 1997 will. Lastly, appellant contends the doctrine of dependent relative revocation is applicable. Appellant states that in substance, he is seeking the right to a trial on the issue of whether decedent revoked her October 1997 will. We affirm.
Respondent Melvin E. Jackson appears for himself and as the administrator of the Estate of Lemuel Detiege.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. Initial facts.
Decedent Lemuel Detiege was the mother of respondent, her only son, and decedent was the grandmother of appellant. Donna Jackson is respondents daughter and appellants sister.
From July 1959 through October 24, 1997, decedent executed four different wills. Attorney James T. Rogers drafted the last three wills. Rogerss standard practice was to have his clients execute three copies of their will, an original and two duplicate originals. All three copies were witnessed. Rogers would give his clients the original and one duplicate original and he maintained the other duplicate original in his files. Rogers followed this practice after he drafted decedents October 24, 1997 will.
Rogers is no longer an active member of the State Bar.
In the October 1997 will, decedent designated gifts of cash to certain friends and family members ranging from $5,000 to $ 30,000. Appellant was bequeathed $30,000 and decedents one-half interest in an apartment building located on Denker Avenue in Los Angeles. In addition to a cash bequest, decedents tenant Kathleen Johnson was to receive jewelry and other personal items. Decedent further specified that her residence located on Mount Vernon Drive was to be sold and the proceeds used to pay the cash bequests. Respondent was to receive the residue. According to other provisions of the October 1997 will, respondents share of decedents estate was reduced from the prior version of decedents will dated May 1, 1996.
In the will, Johnson is identified as decedents niece. However, it appears Johnson lived in decedents home as a tenant and caretaker. There is also some information that Johnson may have been appellants one-time girlfriend.
Josephine Ramsey had known decedent for 20 years. They were long-time friends and neighbors. Ramsey reported that shortly before Thanksgiving 1997, Ramsey visited decedent. According to Ramsey, decedent brought out a fully executed and witnessed will dated October 1997, and decedent said she was ashamed of the will and wanted all of her assets to go to respondent. Ramsey additionally stated she had seen decedent tear up the will into pieces.
Lois Wilcox was respondents aunt and decedents sister. According to Wilcox, in the spring of 1998, she was instructed by decedent to find decedents October 1997 will. Wilcox located the executed and witnessed will in decedents home on Mount Vernon Drive, brought it to decedent, and watched as decedent ripped it up.
Decedent died on April 20, 1998. Shortly thereafter, Carol Churchill, an attorney who represented Johnson, contacted Rogers. Churchill faxed a copy of decedents October 1997 will to Rogers. Churchill also provided respondent with a copy of the will.
Around the time of her death, respondent gave appellant a copy of the October 1997 will.
Shortly after decedents death, respondent met with Rogers to discuss decedents will. Around this time, respondent learned that decedent had destroyed her will from Ramsey, women from decedents church, and decedents close friend, Sally Thompson, who was mentioned as a beneficiary in the October 1997 will. Also, near the time of decedents death, Lois Wilcox told respondent that she had examined a copy of decedents October 1997 will and saw decedent rip up the entire document.
In a May 12, 1998 letter Ramsey addressed to respondent, Ramsey stated: "I am writing you this note to inform you of what I have heard. It is said that [decedent] left a will, and I am really concerned about this. Melvin, there is no will. In November 1997 just before Thanksgiving [decedent] intentionally destroyed the only will that she had in effect. [T]hat will was prepared by James F. Rogers[,] atty at law . . . . The will was dated 10-24-1997. [Decedent] said that this was the eve of your birthday and she was very distressed by . . . the things she had done. [¶] There was . . . lots of pressure on her from different people she took up with. We were sitting in the kitchen at the breakfast table . . . and she brought out the will for me to see and I nearly cro[a]ked when I saw it. She was so ashamed of herself and distressed that she told me why she had done this. We talked for over an[] hour and she intentionally tore that will into pieces — there is no will. You are the only heir. Call me if you need me. If she made another will after that I know nothing of it. It was always her intention to leave her entire Estate to you. . . . If you want me to do anything — let me know." (Original underlining.)
In approximately May 1998, respondent informed appellant that he had learned from Ramsey the following: decedent had told Ramsey she wanted her entire estate left to respondent, and Ramsey had seen decedent tear up a signed and witnessed copy of the October 1997 will.
Both appellant and respondent informed Donna Jackson that Ramsey had witnessed the destruction of decedents October 1997 will. According to Donna Jackson, both appellant and respondent claimed to know that Ramsey had seen decedent tear up the will.
B. The petition for probate filed by respondent and the July 9, 1998 order.
Respondent took Ramsey to meet with attorney James D. Murray whom respondent had hired to handle decedents estate. Ramsey met privately with, and was interviewed by, Murray. After that meeting, respondent filed a petition for probate on June 1, 1998 seeking to be appointed administrator of decedents estate with full authority under the Independent Administration of Estates Act. In the petition, respondent indicated that decedent had died intestate and respondent listed himself as the sole heir. The allegations in the petition were based upon Murrays advice and information respondent had learned from Ramsey and Wilcox about the destruction of decedents October 1997 will.
In June 1998, respondent served, on himself as sole intestate heir, a notice of petition to administer estate. Respondent also served by publication a notice of an upcoming hearing on the petition. The notice was provided to "all heirs, beneficiaries, creditors, contingent creditors, and person who may otherwise be interested in the will or estate."
On July 9, 1998, the probate court entered an order for probate. The order set forth the courts findings that all notices required by law had been given, decedent had died intestate, and respondent had been appointed administrator of decedents estate to be administered under the Independent Administration of Estates Act, with full authority.
Appellant knew that respondent had filed a petition to administer decedents estate. Appellant was involved in on-going discussions with his sister, Donna Jackson, and respondent about appellants dissatisfaction with respondents handling of the estate.
On March 10, 2003, appellant transmitted a copy of the October 1997 will to his attorney by facsimile.
Appellant contacted Murray, but Murray stated that he could not discuss the probate without a waiver from respondent of the attorney-client privilege. In the early part of 2003, probably in April 2003, there was a telephone conference call among appellant, respondent, Murray, and Donna Jackson. Appellant, respondent, and Donna Jackson were in the same house in New York utilizing a speaker phone and Murray was on the other end of the conversation. During the conversation, appellant expressed dissatisfaction with respondents handling of decedents affairs and appellant requested information from Murray. There was no mention of a will during this conversation.
According to Murray, during the conference call, those involved "discussed a `plan for completing the administration of the Estate. One of the problems [they] discussed was the fact that only an undivided one-half interest in the title to the Denker real property was owned by the Decedent and included in the Estate. . . . The plan was for [respondent] to file [an] accounting in the Conservatorship, wind up the Conservatorship, then transfer the assets to the Estate for administration, then [respondent] as the sole heir would file a waiver of accounting so that the Estate could be distributed to [respondent.] By the conclusion of the . . . call, [appellant] stated that he was satisfied with the `plan that [they] discussed."
While decedent was alive, respondent had been appointed conservator over decedent and her estate. In May of 2003, appellant obtained copies of the conservatorship pleadings. On November 19, 2003, the probate court entered an order terminating the conservatorship of decedent nun pro tunc to the date of decedents death.
On January 11, 2005, respondent filed an inventory and appraisal showing that decedents estate was valued at approximately $ 460,000. The two pieces of real property were the principal assets of the estate, of which approximately $52,500 was the value of decedents one-half interest in the Denker Avenue apartment building.
The estate had very little liquid assets. During the pendency of the proceedings, respondent spent his own funds for repair and maintenance on both pieces of real property. He paid for major repairs to the Mount Vernon property. These included repairing and later replacing the roof, and having work done on the heater, drapes and swimming pool. Respondent also paid the mortgage on the property. As of March 2006, respondent advanced more than $100,000.
In a letter brief submitted to this court, respondent states he has advanced approximately $200,000.
From April 1998 through November 18, 2005, appellant and respondent communicated virtually daily, either in person or by telephone. Numerous times they discussed the fact that Ramsey had seen decedent destroy the October 1997 will.
C. Appellants petition to probate will and the August 31, 2007, order.
1. Appellants petition to probate lost will.
More than seven years after the probate court entered its order for probate, appellant filed on November 18, 2005, a petition to probate decedents lost will claiming that decedent did not die intestate. Appellant lodged with the court a copy of the October 24, 1997 will, that appellant claimed was decedents last will.
At a hearing on January 18, 2007, Rogers personally appeared and produced the executed and witnessed duplicate original copy of decedents October 1997 will that he had maintained in his files. On March 14, 2007, appellant amended his petition to probate decedents last will.
2. Respondents opposition to appellants petition.
Respondent, for himself, and as administrator of decedents estate, objected to appellants petition to probate decedents lost will. Respondent argued the probate courts July 9, 1998, order had never been set aside, nor had there been an appeal from that order, which was now final pursuant to Probate Code section 8007, subdivision (a). Respondent asserted, therefore, that appellants petition was an impermissible attempt to collaterally attack the July 9, 1998 order. Respondent contended that appellants petition was time barred because appellant did nothing, even though appellant had known of the order appointing respondent as decedents representative. (Prob. Code, § 8226, subd. (c).) Respondent argued that the October 1997 will could not be admitted to probate because decedent had revoked it. Respondent moved to strike appellants petition to probate decedents lost will. Respondent submitted Ramseys May 27, 1998, declaration in which she declared that around Thanksgiving of 1997, she had seen decedent tear up a signed and witnessed original copy of decedents October 24, 1997 will. At the time, decedent told Ramsey that she wanted her entire estate left to respondent.
Probate Code section 8007 reads: "(a) Except as provided in subdivision (b), an order admitting a will to probate or appointing a personal representative, when it becomes final, is a conclusive determination of the jurisdiction of the court and cannot be collaterally attacked. [¶] (b) Subdivision (a) does not apply in either of the following cases: [¶] (1) The presence of extrinsic fraud in the procurement of the court order. [¶] (2) The court order is based on the erroneous determination of the decedents death."
Ramsey declared in part: "During one of [my] regular visits [with decedent], shortly before Thanksgiving in 1997, the subject of [decedents] Will came-up. [Decedent] appeared to be upset about something . . . . While we were visiting, she brought out a document which she represented was the Will that she had signed in October, 1997, and asked me to read it, which I did. She said that she was ashamed that she had made that Will, when it was her true wish that her estate be left entirely to her son, Melvin Jackson. The Will which she showed to me was a signed and witnessed original. [Decedent] told me that when she died she did not want her estate to go as provided in the Will and she tore it up in my presence. [¶] [] At the time that [decedent] tore up her Will, she appeared lucid, and in my opinion, she knew exactly what she was doing."
3. The hearing and order on appellants petition.
The hearing on appellants petition was held on April 23, 2007. The parties noted that a copy of decedents October 1997 will had been discovered by Rogers. The parties addressed whether the July 9, 1998, order had become final and conclusive and thus, whether the probate court had jurisdiction to hear appellants petition to probate decedents lost will. The probate court held appellant was bound by the findings of the probate court in the July 9, 1998, order and appellant was required to set aside that order before he could proceed. The probate court took all matters off calendar, subject to being reset upon a successful motion to set aside the July 9, 1998, order.
In its written order of August 31, 2007, the probate court held that the July 9, 1998, order was final, and pursuant to Probate Code section 8007, the court did not have jurisdiction to hear appellants petition to probate lost will, which petition could not be heard until the July 9, 1998, order had been set aside.
D. Appellants motion to revoke probate and the December 17, 2007, order.
1. The pleadings and supporting evidence.
In July 2007, three months after the hearing on appellants petition to probate lost will, but a month prior to the filing of the courts August 31, 2007, written order, appellant filed a motion to revoke intestate probate. The motion was brought on the grounds that respondent committed extrinsic fraud by not giving appellant notice of the June 1998 petition for probate. Appellant contended "[r]espondent had actual knowledge of the existence of [decedents] wills, but nonetheless failed to file the same for probate, and he also failed to provide notice to all reasonably ascertainable persons entitled to notice under [Probate Code section] 8110." Appellant also argued that "[i]f [r]espondent reasonably believed [decedent] revoked her will by destroying the original as alleged, then her prior will dated May 1, 1996, would need to have been filed with the court under the doctrine of dependent relevant revocation."
In support of his motion, appellant submitted his own declaration in which he declared the following: respondent had given him a copy of decedents October 24, 1997 will either shortly before or shortly after decedents death. Appellant had never been given notice of the petition for probate or notice that it was to be heard in July 1998. Respondent told him that he was "going to take care [of] Decedents estate[,] [but] never told [him] that he had represented to the court that the Decedent had died intestate." According to appellant, all conversations, including the conference call with Murray, led him "to believe that whatever legal things needed to be done . . . were being done consistent with the provisions of the [October 1997] Will." In addition to other documents, appellant submitted Rogerss deposition.
In opposition to the petition to revoke probate, respondent submitted his own declaration. Respondent declared, in part, that Ramsey had told him that during a visit with decedent shortly before Thanksgiving 1997 decedent told Ramsey she was ashamed of the October 1997 will, decedent gave Ramsey a signed and witnessed copy of the October 1997 will to read, and then decedent tore it up. Respondent also submitted Lois Wilcoxs written statement. In her statement, not signed under penalty of perjury, Wilcox stated that while decedent was in a nursing home, decedent repeatedly stated that the terms of her October 1997 will were not what she wanted. Wilcox found an original, executed, copy of the October 1997 will in decedents home, brought it to decedent, and watched as decedent tore it up on Easter Sunday, April 12, 1998. Respondent declared his conclusion that decedent had destroyed her October 1997 will was influenced by information he had obtained from Ramsey and Wilcox.
Wilcoxs statement dated May 22, 1998 read: "To Whom It May Concern: [¶] In the latter part of February, throughout the month of March and in the first few weeks of April, [decedent] repeatedly instructed me to find and bring to her a Will which she had previously destroyed. She made it clear to me that this will was not her last wishes and she considered it not in effect. [Decedent] was a patient at [a nursing center]. I found the Will in her home [on] Mount Vernon Drive. The Will was dated October 24th, 1997, and I took it to her on, Easter Sunday[,] April 12th, 1998. She examined the four pages shook her head No, several times, said `No and then tore up the page with her signature, which was an original and then tore up the remaining pages. This took a good amount of time since she could only use one hand and her mouth."
In opposing appellants petition, respondent also submitted excerpts from Donna Jacksons deposition. In her deposition, Donna Jackson testified that there had been ongoing conversations involving appellant and respondent regarding the fact that Ramsey had seen decedent destroying her will. Donna Jackson also testified that appellant claimed to have been aware of the fact that decedent had torn up her will. Donna Jackson further testified that she participated in conversations in which appellant expressed dissatisfaction with how respondent was handling decedents estate.
In her deposition, Donna Jackson testified in part:
"Q. To your knowledge, has anybody claimed, other than Jo Ramsey, that they were aware that your grandmother had torn up a will?
"A. My father.
"Q. Anyone other than your father?
"A. My brother."
Respondent noted that in discovery, appellant had produced a copy of the October 1997 will. This facsimile copy showed it had been transmitted by appellant to his attorneys in March 2003, more than two years before appellant appeared in the probate proceeding. Other documents produced by appellant had been obtained in May 2003. They were from decedents conservatorship proceeding.
2. The probate courts ruling.
A hearing on appellants motion to revoke probate was held on October 1, 2007. Pursuant to the parties stipulation, the facts were submitted upon pleadings, declarations, excerpts from deposition transcripts, and other documentary evidence, subject to objections.
On appeal, appellant has submitted the entire contents of Rogerss deposition, a submission respondent attacks as being contrary to the partys evidentiary stipulation and contrary to standard appellate practice. Respondent also suggests appellant has improperly referenced other evidence that was not before the trial court. The most important dispute is with regard to the use of Rogerss deposition. However, the parties do not appear to dispute that it was Rogerss custom and practice to have three copies of wills executed and witnessed, how Rogers handled the execution of decedents will, or that Rogers met with respondent after decedent died. We have assumed appellants interpretation of the parties evidentiary stipulation is correct to the extent appellant discussed these facts.
On December 17, 2007, the probate court entered an order holding notice of respondents June 1, 1998 petition to probate the estate intestate had been properly given, there was no extrinsic fraud, and the doctrine of dependent relative revocation did not apply. The probate court denied appellants petition to revoke probate.
In so ruling, the probate court addressed appellants argument that he had not been given notice as required by Probate Code section 8110. The probate court rejected this argument, reasoning as follows: "Probate Code section 8110, [subdivision] (a) requires that `[e]ach heir of the decedent, so far as known to or reasonably ascertainable by the petitioner receive notice of a petition to administer a decedents estate. `Heir is defined by Probate Code section 44 as `any person . . . entitled to take property . . . by intestate succession . . . . As Melvin was the decedents sole heir [under the rules on intestate succession], the Probate Code required that only Melvin receive notice of his own petition. (Prob. Code[,] [§] 6402, subd. (a).) [¶] [Subdivision (b) of Probate Code section 8110 does not apply here because it is only applicable where a will is being offered to probate.] [¶] Michaels argument that he was a `reasonably ascertainable heir is equally unavailing [because only Melvin was an heir of decedent]. (Prob. Code[,] [§§ 44] and 6402, subd. (a).)"
Probate Code section 6402 reads in part: "Except as provided in Section 6402.5, the part of the intestate estate not passing to the surviving spouse or surviving domestic partner, as defined in subdivision (b) of Section 37, under Section 6401, or the entire intestate estate if there is no surviving spouse or domestic partner, passes as follows: [¶] (a) To the issue of the decedent, the issue taking equally if they are all of the same degree of kinship to the decedent, but if of unequal degree those of more remote degree take in the manner provided in Section 240."
Probate Code section 50 states that "`[i]ssue of a person means all his or her lineal descendants of all generations, with the relationship of parent and child at each generation being determined by the definitions of child and parent."
The probate court also rejected appellants claim of extrinsic fraud by stating: "notice was given as required by law. [T]here was no `apparent willful concealment and lack of notice under [Probate Code section 8110, subdivision (b)]. . . . [¶] To support his extrinsic fraud claim, Michael asserts that Melvin took advantage of their confidential relationship. There is no evidence whatsoever to support a finding that Michael and Melvin had a confidential relationship. They may be related to one another as father and son but family relation standing alone does not establish a confidential relationship. Such a relationship requires that there be a trust and reliance. There has been no such showing here. [¶] Contrary to Michaels claim, this case is not like Estate of Sanders (1985) 40 Cal.3d 607. In Sanders, the personal representative of the estate engaged in an active campaign of misrepresentation to solidify his position as a beneficiary and to prevent the misled beneficiary from challenging the will. . . . The personal representative took affirmative actions to prejudice a beneficiary of the estate. [¶] Here . . . Melvin made [no] affirmative misrepresentation or tried to prevent Michael [from] obtaining relevant information. . . . Michael had a copy of the October 24, 1997 will `either shortly before or shortly after Decedents death. Nothing in Michaels declaration establishes that Melvin misrepresented facts or misled Michael. Melvin told Michael that he was going to take care of his mothers estate. While Melvin and his attorney may not have informed Michael that the proceedings were in intestacy, there is no suggestion in Michaels declaration that such a statement was warranted. In fact, Michaels claim that he was led to believe that the distribution would be consistent with the Decedents October 24, 1997 will is unsupported. It appears that . . . Michaels belief was subjective and unsupported. [¶] Further, as Michael and Melvin had discussed the fact that the Decedent seemingly revoked her will by tearing it up, it is reasonable that the issue of intestate succession would not even come up. Nothing in Michaels declaration suggests that he inquired about the will and was told that the will was being probated. [¶] Michaels claim that Melvin `concealed [from the court] the existence of . . . the October 24, 1997 Will, or . . . prior wills, does not create extrinsic fraud. Melvin learned prior to his filing from two separate and independent sources that the Decedent had revoked her October 24, 1997 will by tearing it up. [¶] . . . [In the conference call with Donna Jackson and Melvins attorney] there was no discussion about a will for the decedent. . . . Michael and Melvin discussed the decedent tearing up the will . . . . Melvin and Michael told Donna Jackson that the decedent had torn up her will. [Donna testified in her deposition that her brother, appellant, had claimed being aware of the fact that the will had been destroyed.]"
In denying the motion, the probate court also held there was "absolutely no evidence that the decedent revoked her October 24, 1997, will with the intention of reviving her previously revoked May 1, 1996 will. [Thus, the doctrine of dependent relative revocation] is not an issue in this case."
The December 17, 2007, order also contained numerous evidentiary rulings. Appellant has not appealed from any of these rulings.
Appellant appeals from the April 7, 2007, order, as formalized on August 31, 2007, and also appeals from the December 17, 2007 order denying his motion to revoke intestate probate proceedings. We affirm.
III.
DISCUSSION
Appellant raises a number of procedural contentions. By these contentions, he states the "[i]n substance, [he is] seeking the right to a trial on the issue of whether [d]ecedents original found will should be submitted despite [r]espondents claim that [decedent] revoked her will by tearing it up." Appellant states that "[t]he issue of whether or not the Decedent revoked her will by tearing it up was notplaced before the [probate] court . . . ." (Original underlining.) However, appellant fails to recognize the issues that were directly presented to the probate court required the probate court to address whether decedent destroyed her October 1997 will. As we show, the findings of the probate court in issuing its order rejecting appellants claim of extrinsic fraud, demonstrate that the probate court necessarily found that decedent was intestate when she died because she had destroyed her October 1997 will. Thus, we affirm.
1. Extrinsic fraud.
Extrinsic fraud is not fraud that occurred in court, such as perjury, which is intrinsic fraud. (Rubenstein v. Rubenstein ( 2000) 81 Cal.App.4th 1131, 1144, fn. 7.) Rather, "`"[e]xtrinsic fraud is a broad concept that `tend[s] to encompass almost any set of extrinsic circumstances which deprive a party of a fair adversary hearing." [Citations.] [¶] `Extrinsic fraud occurs when a party is deprived of the opportunity to present his claim or defense to the court; where he was kept ignorant or, other than from his own negligence, fraudulently prevented from fully participating in the proceeding. [Citation.] Examples of extrinsic fraud are: concealment of the existence of a community property asset, failure to give notice of the action to the other party, and convincing the other party not to obtain counsel because the matter will not proceed (and then it does proceed). [Citation.] The essence of extrinsic fraud is one partys preventing the other from having his day in court. [Citations.]" (Estate of McGuigan (2000) 83 Cal.App.4th 639, 649-650, citing among others, Estate of Sanders (1985) 40 Cal.3d 607, 614 (Sanders); accord, Estate of Beard (1999) 71 Cal.App.4th 753, 774-775.)
"Courts are particularly likely to grant relief [based upon extrinsic fraud] where there has been a violation of a fiduciary or confidential relationship (as between family members or close friends), even if legal notice of the proceeding was otherwise given." (Ross & Moore, Cal. Practice Guide: Probate (The Rutter Group 2008) ¶ 15:218, p. 15-64, citing among others, Sanders, supra, 40 Cal.3d at p. 615.)
In reviewing the probate courts finding as to whether there was extrinsic fraud, like other factual findings (Sui v. Landi (1985) 163 Cal.App.3d 383, 385 [extrinsic fraud is fact issue]), we determine whether the courts determination is supported by substantial evidence, viewing all reasonable inferences in favor of the finding. (Estate of Carter (2003) 111 Cal.App.4th 1139, 1154; In re Marriage of Alexander (1989) 212 Cal.App.3d 677, 682 [extrinsic fraud determination accepted on appeal if supported by substantial evidence].) We view the probate courts findings favorably to the prevailing party, drawing all reasonable inferences and disregarding all contradictory evidence. (Campbell v. Southern Pacific Co. (1978) 22 Cal.3d 51, 60; In re Marriage of Adkins (1982) 137 Cal.App.3d 68, 75.) We resolve any conflict in the affidavits as favoring the prevailing party, here respondent. (In re Marriage of Coffin (1976) 63 Cal.App.3d 139, 149; In re Marriage of Jones (1987) 195 Cal.App.3d 1097, 1101-1102.)
Appellant suggests a de novo standard of review is warranted because the probate court examined the issue of extrinsic fraud utilizing an incorrect legal standard. However, the trial court did not utilize an erroneous legal standard and thus, a sufficiency of the evidence standard is appropriate.
B. Discussion.
1. Notice was provided as statutorily required.
Appellant first contends there was extrinsic fraud because respondent purposefully did not provide him notice that a petition for probate had been filed on June 1, 1998, or that a hearing on the petition would be held in July 1998. The probate courts factual finding on this issue is supported by the evidence.
As applicable here, Probate Code section 8110 and due process require notice of a hearing for administration of a decedents estate be given to all heirs of decedent, "so far as known to or reasonably ascertainable" and to all devisees "in any will being offered for probate, regardless of whether the devise or appointment was purportedly revoked in a subsequent instrument." (Prob. Code, § 8110, subds. (a), (b).)
Probate Code section 8110 reads:
"At least 15 days before the hearing of a petition for administration of a decedents estate, the petitioner shall serve notice of the hearing by mail or personal delivery 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."
"`[R]easonably ascertainable" is to be given a broad meaning to include those persons who are known to the petitioner, as well as those who reasonably might be heirs. (Estate of Carter, supra, 111 Cal. App.4th at p. 1142 [petitioner knew facts from which reasonable person could infer that persons born out of wedlock were heirs, and thus was entitled to notice of administration of estate].) "`Heir means any person, including the surviving spouse, who is entitled to take property of the decedent by intestate succession under this code." (Prob. Code, § 44.) People who are not heirs, devisees, or executors are not entitled to notice as they are strangers to the proceeding. (Estate of Layton (1933) 217 Cal. 451, 462-463; San Diego Trust Etc. Bank v. Heustis (1932) 121 Cal.App. 675, 681.) If a petitioner for administration of a decedents estate "fails to give notice to a genuinely known heir, he or she commits extrinsic fraud and the heir may maintain an action in equity for a constructive trust later. [Citations.]" (Estate of Carter, supra, 111 Cal.App.4th at p. 1149.)
Here, the probate court found that "[as respondent] was the decedents sole heir, the Probate Code required that only [he] receive notice of his own petition." The probate court rejected appellants argument that appellant was a "`reasonably ascertainable heir" concluding that "[appellant] was not an heir of the decedent, only Melvin was." As we discuss below, in making these findings, the probate court by necessity found decedent had revoked her October 1997 will by destruction. This implied finding is supported by the evidence and based upon the law that duplicate originals operate as originals.
A "duplicate original" will is a one that is fully executed and witnessed. (Prob. Code, § 6124; Lauermann v. Superior Court (2005) 127 Cal.App.4th 1327.) It operates as an "original." The designation of an instrument purporting to be a will as a "copy" is not alone sufficient to establish that the decedent lacked testamentary intent in executing the instrument. "Copy" implies that the instrument so labeled is identical with another instrument and if it is properly executed and witnessed, the copy of a will is in effect the same as a duplicate which may be admitted to probate. (Estate of Janes (1941) 18 Cal.2d 512, 516.)
Probate Code section 6124 states: "If the testators will was last in the testators possession, the testator was competent until death, and neither the will nor a duplicate original of the will can be found after the testators death, it is presumed that the testator destroyed the will with intent to revoke it. This presumption is a presumption affecting the burden of producing evidence."
Wills may be revoked by "[b]eing burned, torn, canceled, obliterated, or destroyed, with the intent and for the purpose of revoking it, by either (1) the testator or (2) another person in the testators presence and by the testator direction." (Prob. Code, § 6120, subd. (b).) If a testator tears up or destroys a "duplicate original" it is the same as tearing up or destroying the "original." Probate Code section 6121 provides: "A will executed in duplicate or any part thereof is revoked if one of the duplicates is burned, torn, canceled, obliterated, or destroyed, with the intent and for the purpose of revoking it, by either (1) the testator or (2) another person in the testators presence and by the testators direction." (See also Prob. Code, § 6124; ante, fn. 15.)
The uncontradicted evidence was that it was Rogerss custom and practice to have clients execute three copies of a will and all three identical copies were witnessed. Rogers gave the client the "original" and one copy, and he kept the other copy in his files. In doing so, Rogers created an original and two "duplicate originals." All three of these documents would operate as original wills. Rogers followed this practice when he drafted decedents October 1997 will. The three executed and witnessed copies of decedents wills eventually were accounted for: Rogers found one in his files, Ramsey saw decedent destroy a second, and Wilcox saw the third destroyed by decedent.
The uncontradicted evidence showed that decedent died intestate because she had revoked her October 1997 will by intentionally destroying two witnessed and executed copies of that will. Decedents physical act of ripping them up and decedents expressed intent when she made clear to Lois Wilcox that the October 1997 will did not reflect her last wishes, demonstrated decedent clearly intended to revoke that testamentary instrument. Also, decedent expressed her intent when she told Ramsey that she was ashamed of the October 1997 will, and "[i]t was always her intention to leave her entire estate to [respondent]." (Compare with, Estate of Boyer (1944) 67 Cal.App.2d 83, 85 [evidence of fraudulent destruction of will]; Estate of Dean (1944) 62 Cal.App.2d 418 [evidence showed alleged lost or destroyed will was in existence at time of testatrixs death].)
In the court below, appellant did not challenge the statements made by Ramsey and Wilcox about the destruction of decedents October 1997 will. Nor did appellant challenge the uncontradicted testimony by his sister Donna Jackson that he was aware of, and claimed that, appellant had destroyed her will. (See ante, fn. 9.) Rather, the uncontradicted evidence was respondent learned from numerous sources that decedent voiced dissatisfaction with the terms of her October 24, 1997 will, and decedent physically destroyed two executed and witnessed copies of that testamentary instrument, thereby revoking it. (Prob. Code, §§ 6120, 6121.)
In that the probate court held "Melvin was the decedents sole heir[, and] the Probate Code required that only Melvin receive notice of his own petition," the probate court accepted the above-described uncontradicted evidence and by necessity found that decedent had revoked her October 1997 will by destruction.
2. Other extrinsic fraud findings are also supported.
We are unpersuaded by appellants contention that the record does not support the probate courts other extrinsic fraud findings.
In presenting his arguments, appellant primarily relies upon Sanders, supra, 40 Cal.3d 607. In Sanders, the wife and children of the deceaseds son filed a motion to set aside an order admitting the decedents will to probate on the ground of extrinsic fraud. The nephew, who was the executor, did not deny the factual statements made in the wifes affidavit submitted in support of the motion. (Id. at p. 610 & fn. 1.) Thus, the following was established: The wife "trusted [the nephew] completely." (Id. at p. 611.) When the wife asked the nephew about various aspects of the probate proceedings the nephew avoided answering all of her questions. (Ibid.) The nephew told the wife that he "would take care of everything," (ibid.) "she had no reason to call or contact [the nephews] attorney," and that the will had been put "into `legal form in order to avoid any problems in probate." (Ibid.) However, he did not tell her that "the dispositive provisions had been revised so that he, rather than [the grandchildren], would inherit most of the estate." (Ibid.) After the wife received notice of the probate proceedings, the nephew again told her that her sons interests were being well represented. (Id. at p. 612.) Thereafter, the nephew did not return the wifes telephone calls or answer the wifes letter. (Ibid.) Four days before the hearing on the petition for probate, the wife learned that nephew had arranged for himself to be named as the major beneficiary, and the changed will was being probated. (Id. at p. 613.)
Sanders stated that a confidential relationship exists "`when one party gains the confidence of the other and purports to act or advise with the others interests in mind . . ." or when "`trust and confidence are reposed by one person in the integrity and fidelity of another. [Citation.]" (Sanders, supra, 40 Cal.3d at p. 615.) Further, "`"[w]here there is . . . a duty to disclose, the disclosure must be full and complete, and any material concealment or misrepresentation will amount to fraud sufficient to entitle the party injured thereby to an action."" (Id. at p. 616.)
Sanders found that through a course of concealment and misrepresentation, the nephew violated the confidential and fiduciary relationship requiring him to make a full disclosure of all material facts within his knowledge and not to mislead the wife and grandchildren. (Sanders, supra, 40 Cal.3d at p. 617.) The nephews representations appeared "calculated to leave the impression that [the grandchildrens] interests had not been affected by the changes[ in the estate plan the executor devised]." (Ibid.) Based upon the wifes uncontroverted affidavit, the Supreme Court found that she had relied upon the nephew, who purportedly had been acting to protect her interests and those of the grandchildren. The nephews consistent course of concealment and misrepresentation "led [the wife and grandchildren] to believe the will offered for probate would leave the entire estate to them. He concealed the fact that he had arranged for the decedent to change her will to leave most of the estate to him. He also assured [the wife and grandchildren] that he would represent their interests. Relying on their confidential and fiduciary relationship, [the wife and grandchildren] were lulled into a sense of security by [the nephews] representations. As if to insure the success of his plan, [the nephew] expressly told [the wife and grandchildren] that they need not become involved in the probate proceedings and advised them not to contact the probate attorney." (Id. at p. 619.) The wife and grandchildren had no reason to contact the estate attorney and had no responsibility with respect to the proceedings. The nephew "specifically told [the wife that] she need not attend the hearing on the petition for final distribution." (Id. at p. 617.) "This conduct [seemed] clearly intended to prevent [the wife and grandchildren] from appearing to contest the will." (Ibid.) It amounted to "extrinsic fraud" for purposes of setting aside the prior orders for probate and final distribution. (Sanders, supra, at pp. 616-619.)
Here, in contrast to Sanders, supra, 40 Cal.3d 607, and as the probate court found, appellant did not establish that respondent had made any affirmative misrepresentations or acted to prevent appellant from obtaining relevant information.
The probate court did not, as appellant asserts, state that a finding of extrinsic fraud requires an affirmative misrepresentation. Rather, the probate court discussed the lack of an affirmative representation in the present case to compare appellants actions with Sanders, supra, 40 Cal.3d 607.
Appellant admitted he had a copy of the October 24, 1997 will "either shortly before or shortly after Decedents death." Appellant did not declare that respondent misrepresented facts or misled him. Respondent informed appellant that witnesses had seen decedent destroy her will. Respondent did not lie when he stated he was going to take care of decedents estate. During the telephone conference call with Murray, the will was not mentioned. Respondent did not tell appellant he need not become involved. Even if respondent and respondents attorney may not have told appellant that the proceedings were intestate, such information was not warranted as appellant knew that two witnesses had seen decedent destroy her will, thereby revoking it. The documents produced during discovery showed that appellant was given a copy of the October 1997 will around the time of decedents death in April 1998. Yet, appellant waited until November 2005, more than seven years after decedents April 1998, death to suggest that decedents property should pass pursuant to the October 1997 will. (Lantzy v. Centex Homes (2003) 31 Cal.4th 363, 384, fn. 18 [plaintiff seeking equitable relief must show that defendants conduct induced them to delay bringing a timely suit].) Although appellant and respondent are related, respondent did not represent to appellant that he was acting in appellants best interest. Further, although respondent was decedents conservator, there were no facts to show that respondent abused that position, or that he abused his position as representative of decedents estate. Rather, respondent carried out decedents testamentary intent based upon information that decedent had revoked her October 1997 will by purposefully destroying it. Respondent did not knowingly file a false petition to probate the estate.
These facts support the probate courts factual finding that respondent did not commit extrinsic fraud. They provide substantial evidence to support the probate courts finding that respondent had not concealed, failed to disclose, or violated a confidential relationship.
Also, the probate courts findings in this regard necessarily include implicit findings of the probate court that decedent intentionally destroyed her October 1997 will. When the probate court held that respondents declaration failed to establish that respondent "made any affirmative misrepresentation," misled appellant, or concealed from the probate court the existence of the October 24, 1997 will, the probate court found as fact that respondent had "learned . . . from two separate and independent sources that the [d]ecedent had revoked her October 24, 1997 will by tearing it up." The probate court further found that appellant had told his sister, Donna Jackson, that decedent had torn up her will. In making these factual findings the probate court had to have concluded that decedent had torn up her October 1997 will, thereby revoking it.
Appellant stated there was no evidence that he believed the information that had been provided to him regarding the destruction of decedents October 1997 will. However, appellant presented no evidence that would undercut the credibility of Lois Wilcox, Ramsey, or Donna Jackson. Appellant presented no testimony that would contradict the information as to Rogerss custom and practice or the facts that decedent was given two, fully executed and witnessed copies of her October will. Thus, all evidence pointed to the fact that decedent had destroyed two copies of her October 1997 will with the intent to destroy that testamentary instrument. As the probate court found, any belief by appellant to the contrary was subjective and unsupportable.
3. The doctrine of dependent relative revocation is inapplicable.
Lastly, appellant contends the probate court erred by not considering the doctrine of dependent relative revocation. He argues the application of this doctrine would result in the probating of decedents May 1, 1996 will. This contention is not persuasive. Also, the probate courts findings on this issue further demonstrate that the probate court found that decedent had revoked her will.
The doctrine of dependent relative revocation enables courts to revert back to a prior testamentary instrument, or items contained in prior instruments, if the testator made a mistake. "Under [this doctrine], if a testator revokes his or her will on the assumption that a certain state of facts exists, it is implied that the revocation was conditional on the existence of those facts; and, if the belief was mistaken, the revocation is nullified." (Ross & Moore, Cal. Practice Guide: Probate, supra, ¶ 15:182, p. 15-54.) "If it turns out that the later will is invalid, the condition is deemed to have failed, such that the first will is deemed not to have been revoked." (Id. at ¶ 15:183, p. 15-54.) "Thus, if the testator destroys a first will in the mistaken belief that a second will is valid, the law presumes that the testator intended to revoke only if the second were valid; i.e., the revocation is not absolute, but is relative, and dependent upon the validity of the second will." (14 Witkin, Summary of Cal. Law (10th ed. 2005) Wills and Probate, § 179, pp. 252-253.)
An example of the application of this doctrine is found in the Estate of Anderson (1997) 56 Cal.App.4th 235. In Anderson, the decedent understood and intended that a power of appointment in a will would be preserved in subsequently executed testamentary document. However, due to a drafting error, the newly drafted document did not contain the power of appointment. (Id. at pp. 238-241.) Noting that the doctrine of dependent relative revocation is a means of implementing the rule that wills are "to be construed according to the intention of the testator" (id. at p. 245), Anderson held that the doctrine of dependent relative revocation saved the decedents right to exercise a power of appointment. (Id. at pp. 246-247.)
Here, there are no facts that decedent revoked her October 24, 1997 will with the intention of reviving the previously revoked May 1, 1996 will. Rather, all evidence indicates decedent wished to have her estate pass intestate to respondent, her only son. (Prob. Code, §§ 6120, 6121 [will and a will executed in duplicate is revoked by being destroyed].) Thus, the record supports the probate courts factual finding that there was no evidence to support appellants argument that the doctrine of dependent relative revocation applied.
The probate court held that the doctrine of dependent relative revocation did not apply because "there is absolutely no evidence that the decedent revoked her October 24, 1997 will with the intention of reviving her previously revoked May 1, 1996 will." This has an implicit fact finding that decedent did, in fact, destroy her October 1997 will.
IV.
CONCLUSION
Thus, all evidence in the record supports the probate courts implied finding that decedent purposefully and knowingly destroyed the October 1997 will with the intent of making respondent the sole heir to her estate. Therefore, appellant cannot demonstrate he was prejudiced by any of the probate courts rulings as he has already had what he seeks — a determination as to whether decedent destroyed her October 1997 will.
The parties also address the time restrictions in Probate Code section 8226 and the recent cases of Estate of Kelly (2009) 172 Cal.App.4th 1367 and Estate of Earley (2009) 173 Cal.App.4th 369. In light of our holding, we need not address this and other issues. We question however, the applicability of Kelly to the facts before us in that Kelly did not discuss the effect of notice by publication, constructive notice, or the purpose the 1997 amendments to Probate Code section 8226, which were to "prevent the proponent of the other will from delaying disclosure of that instrument beyond the period when devisees and creditors have acted in reliance on the earliest admitted will." (Sen. Rules Com., Off. of Sen. Floor Analyses of Assem. Bill No. 1172 (1997-1998 Reg. Sess.) as amended Sept. 5, 1997, p. 5.)
V.
DISPOSITION
The orders of the probate court are affirmed. Respondent Melvin E. Jackson, individually and as the administrator of the Estate of Lemuel Detiege, is awarded costs on appeal.
We concur:
KLEIN, P. J.
KITCHING, J.