Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. BP098687 Reva Goetz, Judge.
Jonathan Greenspan and Eric R. Yamamoto for Objector and Appellant.
Laurie A. Laws for Petitioner and Respondent.
DOI TODD, J.
Appellant Sandra Lynn Duckart challenges the admission to probate of her father’s holographic will offered by his niece, respondent Penelope Duranceau. Appellant contends that the will was improperly admitted because (1) respondent’s amended petition for probate was barred by the limitations period in Probate Code section 8226, subdivision (c), and (2) the instrument lacked present testamentary intent both on its face and as demonstrated by the extrinsic evidence. We disagree and affirm the order admitting the holographic will to probate.
All statutory references shall be to the Probate Code, unless otherwise noted.
BACKGROUND
Factual Background
Arthur Leroy Milum died on February 5, 2006 at the age of 84. He was survived by appellant, his only child whom he had not seen since she was two and who had been adopted by her stepfather, and his two nieces, respondent and her older sister, Peggy Bower. The evidence established that the decedent made a living through a radio and television repair business, which he operated from a building he owned. He also owned and managed an apartment building. A friend and neighbor of the decedent’s testified that he showed her how to prepare eviction notices, and that he once told her he was “working on” a living trust. By all accounts, the decedent was meticulous, organized and careful in his business and personal affairs. He kept a file cabinet and photocopy machine at his home and had lawyers’ business cards in his desk. According to one friend, the decedent did not trust lawyers and did not want to pay attorney fees, but he was represented by lawyers in his second divorce and in connection with evictions.
After his divorce from appellant’s mother, the decedent lived with his mother, his sister and his two nieces. His niece Bower moved out of the family home at 18 when she married and moved to Pennsylvania. She had three children and her husband died approximately six years later. Bower did not graduate from high school, remarry or have marketable skills. She thought of the decedent as a “father figure.” Over the years, the decedent sent Bower money, both as gifts and loans. Bower was not a good money manager. Respondent testified that on two occasions prior to 2002, the decedent took her aside and told her that he was so concerned with Bower’s health and welfare that he was going to leave everything to her when he died, but that he wanted her to help Bower manage her financial affairs when that happened. One of the decedent’s tenants testified that he talked about his nieces all the time and that he told her he was going to leave them everything when he died. A third witness, a friend of the decedent’s, testified that he told her he was concerned about Bower and wanted to provide for her when he died and that he felt respondent could take care of herself.
Three years before he died, the decedent wrote Bower a letter dated December 1, 2002 (the letter), which is the subject of this lawsuit. Shortly thereafter Bower spoke with the decedent, who convinced her that he was “dead serious about it.” Bower spoke to respondent about the letter several times over the years. Bower testified that her memory started to slip when the decedent died and she was unable to find the letter. Respondent testified that Bower had Alzheimer’s disease and did not locate the letter until October 2006, when respondent traveled to her home in Pennsylvania to help her search for it.
The letter stated in full: “Dear Peggy, [¶] Hope all is well with you and the boys. Been playing any Bingo? Better still, I hope you won lots of money! [¶] I hurt my back a few days ago. Guess I need to remember that I’m an old man and need to slow down, which is easier said than done for this old codger. [¶] I talked to Penny [respondent] a few days ago. Shes [sic] at loose odds [sic] for New Years. She said her kids are going with their dad somewhere up north so she’s not going to take any time off. [¶] Since Mother and Joyce [the decedent’s sister] are gone now, things just aren’t like they used to be. It seems like theres [sic] no one left. You’re clear across the country and Penny has to work all the time. I sure do miss those times when we all got together but I shouldn’t complain over what’s inevitable. [¶] Peggy, I want you to know that when I pass on everything I have is yours. I’m giving it all to you. Spend it and enjoy it! [¶] I will call you on Christmas Day. Love, Roy.” (Italics added.)
During his last few years, the decedent did not have much contact, if any, with his family. In April 2005, a professional conservator was appointed over his person and estate following an incident in which he was arrested for waving guns around. After the decedent’s death, the conservator twice searched his home, but did not locate a will or any documents relating to his estate plans. Respondent assisted in one of the searches.
Procedural Background
On June 1, 2006, respondent filed a petition for probate seeking appointment as administrator of the decedent’s estate. On July 7, 2006, appellant filed her own petition for probate seeking appointment as administrator and objected to respondent’s petition. Both petitions alleged that the decedent died intestate and estimated the value of his estate at $1,852,500.
On September 11, 2006, apparently following a hearing, the trial court issued two minute orders. One minute order addressed respondent’s petition, noting that appellant had priority of appointment as the decedent’s daughter and ordered respondent’s petition off calendar at her attorney’s request. The other minute order granted appellant’s petition. On October 10, 2006, the court issued its signed “Order for Probate” on Judicial Council Form DE-140, appointing appellant as administrator and making the finding that the decedent died intestate. Letters of administration were issued the following day.
On February 5, 2007, respondent filed an amended petition seeking to have the letter admitted to probate as the decedent’s will. Appellant objected to the amended petition on the grounds that it was untimely under section 8226 and that the letter did not constitute a valid holographic will because it lacked testamentary intent. The matter was tried to the court over two days. On August 16, 2007 the trial court issued a minute order containing a statement of decision setting forth its findings that the amended petition was timely filed and that the letter constituted a valid holographic will under section 6111. The order denied appellant’s will contest with prejudice, approved respondent’s amended petition and admitted the holographic will to probate.
Appellant then requested that the court clarify its statement of decision by addressing the issue of whether the decedent intended the letter to constitute his will. She also moved for a new trial. As part of her new trial motion, appellant complained that the court excluded from evidence at trial a “Bekins box” of documents allegedly maintained by the decedent and recovered from his home after his death that were indicative of the custom and manner in which he conducted his affairs. She sought to have the box lodged with the court, though the actual box itself was different than the one presented at trial. The court denied the requests and new trial motion. This appeal followed.
Appellant’s notice of appeal states that she is appealing from “the motion [sic] entered on October 10, 2007 denying her petition for new trial.” Not only is this order missing from the record on appeal, but an order denying a motion for new trial is nonappealable. (Walker v. Los Angeles County Metropolitan Transportation Authority (2005) 35 Cal.4th 15, 18 [concluding that where it is reasonably clear what appellant was trying to appeal from and no prejudice would accrue to the respondent, appellate court should treat the notice as an appeal from the underlying judgment].) The notice of appeal also states that the appeal is brought pursuant to section 1313, though it does not identify a particular subdivision. We note that section 1303, subdivision (b) provides that the grant or refusal to grant an order admitting a will to probate is appealable. The minute order dated August 16, 2007 admits to probate the letter as a holographic will. But the minute order directs respondent’s attorney to prepare a formal order for signature. When a minute order expressly directs that a written order be prepared, an appeal does not lie from the minute order, but only from the later order. (Cal. Rules of Court, rule 8.104(d)(2).) Appellant’s appendix on appeal does not contain this subsequent signed order. Rather than dismiss the appeal outright, which would have been entirely appropriate, we asked appellant to supply us with the signed order for probate, dated September 20, 2007. Appellant did so after apparently obtaining a copy from respondent.
DISCUSSION
Appellant contends that the trial court erred in admitting the letter to probate as the decedent’s will because respondent’s amended petition was untimely and because neither the letter itself nor the extrinsic evidence shows a present testamentary intent. For the reasons that follow, we disagree.
I. Respondent’s Amended Petition Was Timely Filed.
Section 8226, subdivision (c) provides: “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.)
The trial court concluded that section 8226 was inapplicable, finding that it only addresses those situations where a prior will has been probated. Appellant is correct that such a conclusion ignores that part of the statute providing that the 120-day deadline begins after issuance of the order determining the decedent to be intestate. But appellant is incorrect that the deadline had run here. Appellant starts the running of the limitations period from the court’s September 11, 2006 minute order granting her petition for probate. But nothing in that minute order addresses whether the decedent had died intestate. In the record before us, the first order to make the finding that the decedent died intestate was the October 10, 2006 order for probate. Respondent’s amended petition filed on February 5, 2007 was filed within 120 days of that October order.
Appellant’s reliance on the California Practice Guide for the proposition that the September 11, 2006 minute order starts the clock running is misplaced. (Ross et al., Cal. Practice Guide: Probate (The Rutter Group 2007) ¶ 15.211, p. 15–62 (rev. # 1, 2006).) The paragraph cited by appellant refers to section 8225, which states in full: “When the court admits a will to probate, that fact shall be recorded in the minutes by the clerk and the will shall be filed.” Where, as here, there was no will probated prior to the petition in question, section 8225 is inapplicable.
Accordingly, we agree with the trial court—albeit for different reasons—that respondent’s amended petition was timely filed.
II. The Letter and Extrinsic Evidence Support a Finding of Testamentary Intent.
A. Holographic Wills and Standard of Review
Section 6111 provides that where a document does not comply with the requirements of section 6110 for a duly executed will, it may nonetheless be valid as a holographic will if the signature and material provisions are in the handwriting of the testator. (§ 6111, subd. (a).) It is well established that no particular words or format are necessary for a document to constitute a holographic will. (Estate of Wong (1995) 40 Cal.App.4th 1198, 1205.) What is necessary is that the testator must have intended a testamentary distribution of his property through that very document. “‘Before an instrument may be admitted to probate as a will, it must appear from its terms, viewed in the light of the surrounding circumstances, that it was executed with testamentary intent. [Citations.]’” (Estate of Williams (2007) 155 Cal.App.4th 197, 211; § 6111, subd. (c).) “The testator must have intended, by the particular instrument offered for probate, to make a revocable disposition of his property to take effect upon his death.” (Estate of Sargavak (1950) 35 Cal.2d 93, 95.) “If the informal document fails to disclose testamentary intent, and merely expresses a desire or future intention, . . . it cannot be given effect as a will. In other words, it must appear that the decedent intended to make a testamentary disposition by that particular paper, and if this cannot be shown it is immaterial that his testamentary intentions were in conformity with it.” (14 Witkin, Summary of Cal. Law (10th ed. 2005) Wills and Probate, § 157, p. 230.)
“If the document can constitute a will, the finding that it expresses testamentary intent is subject to a substantial evidence review.” (Estate of Wong, supra, 40 Cal.App.4th at p. 1204; Estate of Williams, supra, 155 Cal.App.4th at p. 211.) Accordingly, we determine whether there is any substantial evidence, contradicted or uncontradicted, to support the court’s findings or order. When two or more inferences reasonably can be deduced from the facts, we cannot substitute our deductions for those of the trial court. (Estate of Bristol (1943) 23 Cal.2d 221, 223; Wurzl v. Holloway (1996) 46 Cal.App.4th 1740, 1754.) We do not reweigh the evidence and are bound by the trial court’s credibility determinations. (See Heller v. Pillsbury Madison & Sutro (1996) 50 Cal.App.4th 1367, 1384.) “If there is a conflict in the evidence bearing on the question of decedent’s intent . . ., or in the reasonable inferences to be drawn therefrom, we are bound by the trial court’s determination of that conflict.” (Estate of Beebee (1953) 118 Cal.App.2d 851, 856–857; Estate of Ehrenfels (1966) 241 Cal.App.2d 215, 222.)
B. Statement of Decision
As a preliminary matter, appellant contends that the trial court failed to make any finding as to whether the letter expressed testamentary intent. She claims that because she specifically requested the court to clarify its statement of decision by addressing the issue of whether the decedent intended the letter to constitute his will, the court’s failure to do so was per se reversible error. (In re Marriage of Sellers (2003) 110 Cal.App.4th 1007, 1010.)
Here, the trial court’s August 16, 2007 minute order set forth the basis for its finding that the letter constituted a valid holographic will. The order first noted the requirements of section 6111 and the evidence supporting the finding that the letter was in the decedent’s handwriting. The order then stated at paragraph 6: “The paragraph in question [“Peggy, I want you to know that when I pass on everything I have is yours. I’m giving it all to you. Spend it and enjoy it!”] is clear as to the material provisions: [¶] a. The donative intent is clear based on the language, ‘. . . everything I have is yours. I’m giving it all to you’ and [¶] b. The donative intent is confirmed by the additional sentence, ‘Spend it and enjoy it.’”
It thus appears the trial court recognized that one of the material provisions of a holographic will is the testator’s testamentary or donative intent. The court’s language can fairly be read to disclose its finding on the ultimate fact that the letter was intended to be a testamentary document. “The court’s statement of decision is sufficient if it fairly discloses the court’s determination as to the ultimate facts and material issues in the case.’” (In re Marriage of Burkle (2006) 139 Cal.App.4th 712, 736, fn. 15.) We therefore find no merit to appellant’s argument that the statement of decision failed to address a principal controverted issue.
C. Testamentary Intent
Appellant contends that even if the trial court did make a finding that the letter was executed with testamentary intent, such a finding is not supported by either the letter itself or the evidence produced at trial.
Appellant argues that the letter on its face is ambiguous as to testamentary intent. She claims that the operative language—“I want you to know that when I pass on everything I have is yours. I’m giving it all to you”—can be interpreted as meaning either when I make a will or I have made a will, because there is no statement that the letter is in fact the decedent’s will. But, as we have noted, “‘“‘[n]o particular words are necessary to show testamentary intent. It must appear only that the maker intended by it to dispose of property after his death . . . .’”’” (Estate of Williams, supra, 155 Cal.App.4th at p. 211.) We do not find the operative language to be ambiguous. Contrary to appellant’s assertion, there is no reference in the letter to any past will or testamentary instrument. Nor is there any suggestion in the letter that appellant was intending to make a will in the future. “‘“‘[T]he true test of the character of an instrument is not the testator’s realization that it is a will, but his intention to create a revocable disposition of his property to accrue and take effect only upon his death and passing no present interest.’ [Citation.]”’” (Id. at p. 212.) Here, the text of the letter indicates that the decedent’s intent was to dispose of his property upon his death.
Appellant also argues that the evidence presented at trial does not support a finding that the decedent intended the letter to serve as his will. The Probate Code expressly allows a court to consider extrinsic evidence to determine whether a testator prepared an instrument with testamentary intent. (§ 6111.5; Estate of Brenner (1999) 76 Cal.App.4th 1298, 1302.) Appellant points to testimony that the decedent once told a neighbor that he was working on a living trust; that he was meticulous and careful in handling his business and personal affairs and kept organized files and copies of documents; that he had previously used the services of lawyers; and that his concern about Bower’s ability to manage money was not addressed in the letter. Appellant claims that all of this evidence is inconsistent with the finding that the decedent intended the letter to be his will.
But, as noted above, our task on appeal is to determine whether there is any substantial evidence, contradicted or not, to support the court’s finding. And here there was such evidence. Three witnesses testified that the decedent had told them he was so concerned about his niece Bower that he was going to leave her everything he had when he died. While the decedent was also concerned that Bower was not a good money manager, respondent testified that he had already asked her to help Bower with money management upon inheriting his estate. This testimony as to the decedent’s express wishes upon his death was consistent with the terms of the letter. We conclude that such testimony supports a finding that the letter was written with testamentary intent.
D. Exclusion of Evidence
Finally, appellant complains that the trial court erred in refusing to admit into evidence as a single exhibit business and correspondence files allegedly maintained by the decedent. Appellant concedes that “no single document of the collection of documents is of much import to the case at hand,” but argues that the entire collection is indicative of the decedent’s habit, custom and practice in conducting his personal and business affairs and was probative of his state of mind.
We have little trouble finding appellant’s argument to be without merit. The record discloses that on the first day of trial, appellant’s attorney sought to have admitted as a single exhibit a “Bekins box” of unidentified files and documents that respondent’s attorney had never reviewed. While the trial court would not permit the entire box to be marked as one exhibit, the court was willing to admit individual documents subject to a proper foundation. But appellant never attempted to lay a foundation for any of the documents. As respondent notes, Evidence Code section 1401, subdivision (a) specifically requires that a writing be authenticated before it may be received in evidence.
Moreover, appellant has not demonstrated any prejudice. “Even where a trial court improperly excludes evidence, the error does not require reversal of the judgment unless the error resulted in a miscarriage of justice. (Cal. Const., art. VI, § 13.)” (Saxena v. Goffney (2008) 159 Cal.App.4th 316, 332.) The complaining party “has the burden to demonstrate it is reasonably probable a more favorable result would have been reached absent the error. [Citations.]” (Ibid.) We find no prejudice because the fact that the decedent was meticulous and organized in conducting his business and personal affairs was established through the testimony of several witnesses.
DISPOSITION
The order admitting the letter to probate is affirmed. Respondent to recover costs on appeal.
We concur: BOREN, P. J., CHAVEZ, J.