Estate of Bartsch
Filed 1/30/14 Estate of Bartsch CA1/1
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opinion has not been certified for publication or ordered published for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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
Estate of HANS HERBERT BARTSCH, Deceased.
ARNDT PELTNER, as
Executor, etc.,
Petitioner and Respondent,
v.
NORMAN BARTSCH
HERTERICH,
Objector and
Appellant.
A135322
(San
Francisco City & County
Super. Ct. No. PES-08-291846)
Objector Norman Bartsch Herterich
a motion summary judgment in favor of respondent Arndt Peltner. The probate court granted summary judgment, holding
that objector is not a pretermitted heir within the meaning of Probate Code
section 21622. That section permits a
child to correct a mistaken or inadvertent omission from a
the decedent was unaware of the child’s birth at the time of execution. The court further found decedent Hans Herbert
Bartsch had intentionally disinherited objector, having included a valid
disinheritance clause in the subject will.
We affirm.
PROCEDURAL HISTORY
This is the second time we have
considered an appeal in this case. (See
885 (Bartsch I).)
of This Estate Proceeding
We quote at length from our
discussion of the facts in our prior
opinion.
title="">[2]
“On January 18, 2007, decedent executed his last will and testament. In the document, decedent states ‘I declare
that I am not currently married and I have had no children, stepchildren or
foster children.’ The will names
approximately 20 beneficiaries, including
most of whom are said to reside in Germany. The will gives 14 percent of the estate to
respondent, who is also named as the will’s executor. It makes no provision for objector, and
further provides: ‘I have intentionally
and with full knowledge omitted to provide for all of my heirs and relatives
who are not specifically mentioned herein, and I hereby generally and
specifically disinherit each, any and all persons whomsoever [
lawfully determined to be my heirs at law, except as otherwise mentioned in
this Will, and I direct that any claim or contest that may be made against the
distribution of my estate by any person or persons be repudiated by my
Executor, and if any beneficiary or other person shall make or file any contest
to or seek to impair or invalidate any of the provisions of this, my Last Will
and Testament, or shall conspire with or voluntarily assist anyone attempting
to do any of those things, they shall be barred from receiving any bequest or
benefit from my estate, direct or indirect, and if they successfully contest or
claim, they shall receive the sum of ONE DOLLAR ($1.00) in lieu of any such
bequest, benefit or award.’
“Decedent reportedly died on October 25, 2008.
“On November 17, 2008, respondent filed a petition for probate of decedent’s will and for
letters testamentary.
“On December 10, 2008, the probate court appointed respondent as the personal
representative of the estate.
“On April 1, 2009, objector filed a petition to determine distribution rights under
section 11700 et seq. In his petition,
he claims he is the only child of decedent and that he is entitled to succeed
to decedent’s entire estate under the laws of intestate succession. He alleges his mother had a relationship with decedent,
resulting in objector’s birth in May 1961, and that a court in a 1963 paternity
proceeding found decedent to be his father and imposed child support
obligations. He also alleges decedent
either did not believe objector was his child or had forgotten that he was his
child, rendering objector an omitted child under section 21622.[
Objector’s petition prays for an order
directing the personal representative to distribute the entire estate to him.
“On June 19, 2009, respondent filed an answer in his capacity as executor of the
estate stating his opposition to objector’s petition. None of the other beneficiaries have appeared
in this matter.†(Bartsch I, supra, 193 Cal.App.4th at pp. 888–889.)
On March 22, 2011, we issued our
opinion in Bartsch I, upholding the
probate court’s ruling approving an interim award of attorney fees and costs
incurred by respondent in the ongoing will contest based on our determination
that respondent could participate “as a party to assist the court†under
section 11704, subdivision (b). (
888.)
On August 8, 2011, respondent filed the motion for summary judgment, asserting there
is no triable issue of fact and objector fails to meet the criteria required
for relief under the provisions of section 21622. Respondent argued that decedent was aware of objector’s
existence when he executed his will, and therefore the provisions of
section 21622 had no application.
He further asserted extrinsic evidence demonstrates objector’s exclusion
from decedent’s will was intentional and not the result of any mistake.
On December 30, 2011, the probate court granted the motion for summary judgment.
On March 22, 2012, the probate court filed its amended judgment in favor of
respondent. This appeal followed.
I.
Summary judgment is proper only if
there is no triable issue of material fact and the moving party is entitled to
judgment as a matter of law. (Code Civ.
Proc., § 437c, subds. (c), (f).) “On
appeal after a motion for summary judgment has been granted, we review the
record de novo . . . .†(
Cal.4th 317, 334.) “[W]e determine with
respect to each cause of action whether the defendant seeking summary judgment
has conclusively negated a necessary element of the plaintiff’s case, or has
demonstrated that under no hypothesis is there a material issue of fact that
requires the process of trial, such that the defendant is entitled to judgment
as a matter of law.†(
If the defendant fails to make this
initial showing, it is unnecessary to examine the plaintiff’s opposing evidence
and the motion must be denied. However,
if the moving papers make a prima facie showing that justifies a judgment in
the defendant’s favor, the burden shifts to the plaintiff to make a prima facie
showing of the existence of a triable issue of material fact. (Code Civ. Proc., § 437c, subd. (p)(2);
25 Cal.4th 826, 849 (Aguilar);
In determining whether the parties
have met their respective burdens, “the court must ‘consider all of the
evidence’ and ‘all’ of the ‘inferences’ reasonably drawn therefrom [citation],
and must view such evidence [citations] and such inferences [citations], in the
light most favorable to the opposing party.â€
(Aguilar, supra, 25 Cal.4th at
p. 843.) “There is a triable issue of
material fact if, and only if, the evidence would allow a reasonable trier of
fact to find the underlying fact in favor of the party opposing the motion in
accordance with the applicable standard of proof.†(Id.
at p. 850, fn. omitted.) Thus, a
party “cannot avoid summary judgment by asserting facts based on mere
speculation and conjecture, but instead must produce admissible evidence
raising a triable issue of fact. †(
(2002) 102 Cal.App.4th 977, 981.)
II.
A. Undisputed
Facts
Respondent’s motion for summary
judgment asserts six allegedly undisputed facts: (1) That decedent was a party to the 1963
paternity action; (2) that the paternity order declared decedent to be
objector’s father and ordered him to pay child support; (3) that decedent
did in fact pay child support until objector turned 21; (4) that in 1993,
approximately 15 years before he died, decedent executed a will in which he
stated his intent to disinherit objector; (5) that decedent instructed his
attorney who drafted the operative will to eliminate specific reference to
objector and to instead utilize a general disinheritance clause in the will;
and (6) that after decedent’s death respondent discovered letters in decedent’s
residence purportedly from objector’s mother, urging him to contact his son.
that, as a matter of law, objector could not show decedent was unaware of his
birth. He also argued that operation of
the general disinheritance clause in the will entitled him to summary judgment. Finally, respondent sought summary judgment
on the basis that objector could not prove his father failed to provide for him
“solely†because he was unaware of his birth, as set forth in section 21622.
As to the facts themselves, objector
did not dispute their existence.
Instead, he disputed the inferences to be drawn from the facts. Specifically, he asserted that facts
surrounding the 1963 paternity action were irrelevant to proving decedent’s
state of mind in 2007, when the operative will was drafted. He also denied that
decedent had instructed his attorney to retain a general disinheritance clause
in the will, instead claiming that the attorney includes an almost identical
clause in every will she prepares.
B. Burden
of Proof as to Objector’s Status as an Omitted Child
Objector contends the trial court
erred in ruling there is no dispute as to whether he is entitled to a share of
the estate as an omitted child. He
claims the face of the will shows that decedent erroneously believed he had no
children, and therefore respondent cannot negate the possibility that decedent
was unaware that objector was his child.
He also claims the court erred in relying on extrinsic evidence to grant
summary judgment. He asserts that unless
an omitted child relies on extrinsic evidence to prove lack of awareness of his
birth, or a lack of intent to disinherit, the proponent of a will
evidence on those issues in the first instance.
Consideration of the issues raised by objector requires some historical
background.
Preliminarily, we note that although
this case is before us on appeal from a summary judgment, the burden of proof
on the ultimate issue was on objector: “Under
the current version of the summary judgment statute, a moving defendant need
not support his motion with affirmative evidence negating an essential element
of the responding party’s case. Instead,
the moving defendant may (through factually vague discovery responses or
otherwise) point to the absence of
evidence to support the plaintiff’s case.
When that is done, the burden shifts to the plaintiff to present
evidence showing there is a triable issue of material fact. If the plaintiff is unable to meet [his or
her] burden of proof regarding an essential element of [his or her] case, all
other facts are rendered immaterial.†(
(1996) 43 Cal.App.4th 472, 482.)
Former section 90, as relevant here,
provided: “ ‘When a testator omits
to provide in his will for any of his children, . . .
the will or before or after the death of the testator, and such child or
issue are unprovided for by any settlement, and have not had an equal
proportion of the testator’s property bestowed on them by way of advancement,
such omission was intentional, such child or such issue succeeds to the same
share in the estate of the testator as if he had died intestate.’ †(Estate
of Della Sala (1999) 73 Cal.App.4th 463, 468, italics added (
This statute, by its terms, made
extrinsic evidence inadmissible to show an intent to omit a child. The Supreme Court, however, held that
extrinsic evidence was admissible to
show lack of intent to omit a child. (Estate
of Torregano (1960) 54 Cal.2d 234, 243–248 (Torregano).) It reasoned: “[I]t is obvious, by very definition, that a
pretermission can exist only through oversight. It occurs only when there has been an omission
to provide, absent an intent to omit. . . . [T]he mistake or accident
which caused the testator to omit provision for his child cannot possibly
appear from the will itself. Extrinsic
evidence for this purpose must be contemplated by the statute. Otherwise pretermission could never be proven.â€
(Id.
at p. 246.) Thus, for example, a child
had to be allowed to introduce extrinsic evidence that the decedent mistakenly
believed the child was dead. (
Effective January 1, 1985, however, the Legislature repealed section 90. (Stats. 1983, ch. 842, § 18, p. 3024.) In its stead, it enacted former sections 6570,
6571 and 6572. (Stats. 1983, ch. 842, §
55, pp. 3049, 3090.) These have since
been renumbered (with minor changes not significant for our purposes) as
sections 21620, 21621 and 21622. (Stats.
1997, ch. 724, §§ 17, 34; see also Stats. 1990, ch. 79, § 14, p. 463.)
Section 21620 provides: “Except as provided in Section 21621, if a
decedent fails to provide in a testamentary instrument for a child of decedent
born or adopted after the execution
of all of the decedent’s testamentary instruments, the omitted child shall receive
a share in the decedent’s estate equal in value to that which the child would
have received if the decedent had died without having executed any testamentary
instrument.†(Italics added.)
Section 21621, as relevant here,
provides: “A child shall not receive a
share of the estate under Section 21620 if any of the following is established:
[¶] (a) The decedent’s failure to provide for the child in the decedent’s
testamentary instruments was intentional and that intention appears from the
testamentary instruments.â€
Finally, section 21622 provides: “If, at
the time of the execution of all of decedent’s testamentary instruments effective
at the time of decedent’s death, the decedent failed to provide for a
the child shall receive a share in the estate equal in value to that which the
child would have received if the decedent had died without having executed any
testamentary instruments.†(Italics
added.)
Unlike former section 90, the
present statutes draw a deliberate distinction between children born before and
born after the making of the will. With
respect to a child born after the
making of the will, the burden of proving that the decedent intended to omit
the child still is on the party opposing the child’s claim, and still cannot be
met with extrinsic evidence. But with
respect to a child born before the
making of the will, the burden of proving that the decedent did
decedent thought the child was dead, or was unaware of the child’s birth—is on
the child. (Estate
of Mowry (2003) 107 Cal.App.4th 338, 343 (Mowry); Della Sala, supra, 73 Cal.App.4th
463, 465, 469–470; see also Evid. Code, § 500.)
In asserting that a triable issue of
material fact exists, objector relies heavily on Estate of Smith (1973) 9 Cal.3d 74 (Smith) in his opening brief.
In Smith, the decedent’s will
stated: “ ‘I hereby declare that I
am divorced from Victoria Jo and I have no children by my marriage . . . .’ †(Id.
at p. 77.) However, he did have a
daughter from an earlier marriage. (
he believed this daughter had been adopted.
(Id. at pp. 76–77.)
The Supreme Court held, citing (former)
section 90 and Torregano, that there
was insufficient evidence of intent to omit the daughter: “[A] child of the testator is disinherited
only when the intent to disinherit the child appears in strong and convincing
language on the face of the will.
[Citations.] When this intent
does not appear the ‘presumption of law that the failure to name a child or
grandchild in a will was unintentional’ rules the case. †(Smith,
supra, 9 Cal.3d at pp. 78–79.) “The
statement in the will indicating that [the decedent] had no children does not
show an intent to disinherit, and, as we have seen, such an intent may not be
established by extrinsic evidence.†(
intent to disinherit a child must appear in the will. With respect to a child born before the
making of the will, such as objector, these cases are no longer good law.
In Della Sala, a son brought an action under section 21622
claiming he was inadvertently omitted from a bequest because his father thought
he was dead. The appellate court
rejected the omitted child’s bid to apply former section 90 and the case law developed
under that provision. The court observed
that “by repealing section 90 and replacing it with the current statutory
scheme, the Legislature intended to change the law. [Citations.]
The legislative history we have recounted confirms an intent to change
the law.†(Della Sala, supra, 73
Cal.App.4th at p. 469.) The court
refused the son’s attempt to shift the burden of proof to the proponent of the
will, confirming under section 21622 it is the child who bears the burden
to prove each fact essential to his or her claim for relief. (Della
Sala, at p. 469.)
Here, objector was born in 1961,
almost 46 years before the making of the operative will. Thus, as is apparent, neither section 21620,
which deals with a child born after the making of the will, nor section 21621,
which creates an exception to section 21620, applies. (Mowry,
supra, 107 Cal.App.4th at p. 341.)
The only relevant statute is section 21622. Accordingly, objector had the ultimate burden
of proving that decedent was unaware of his birth at the time the will was
executed.
C. Admissibility
of Extrinsic Evidence
On appeal, objector claims the
adoption of section 21622 did not abolish the rule stated in
to its rebuttal function and may not be used as affirmative evidence against
the presumptive heir to establish that the omission of the heir was
intentional. [Citation.] A contrary rule would violate the specific
language in section 90 that an intention to omit must appear in the will.†(Smith,
supra, 9 Cal.3d at p. 80.) As noted,
with respect to a child, like objector, who is born before the making of a will, Smith
is no longer good law. While he
acknowledges that the main difference between former section 90 and
section 21622 is that such an omitted child now has the burden of proving
lack of awareness on the part of the testator, objector claims there is no
evidence that the Legislature intended to change the applicable rules of
evidence that would permit introduction of evidence of awareness of the
existence of a living heir. In light of
the fact that section 21622 explicitly reversed the burden of proof with
respect to children born before the execution of a will, we find this argument
unpersuasive.
We also note the probate court
overruled objector’s evidentiary protests below. For example, objector had objected to
evidence of the 1963 paternity action, claiming evidence of decedent’s “state
of mind or intent to disinherit that is extrinsic to his own statements in the
Will itself are inadmissible except when offered to rebut evidence of his state
of mind or intent to not disinherit, which evidence [objector] has not offered
in this case and does not need.†Evidentiary
rulings made in conjunction with a motion for summary judgment are reviewed
under the abuse of discretion standard. (
(2005) 127 Cal.App.4th 457, 467.) We
find no abuse of discretion here.
Objector himself introduced evidence
of the 1963 paternity proceeding when he filed his petition to determine
distribution rights. Decedent was named
as a party in that action, and the resulting order included the requirement
that decent pay monthly child support until the child reached the age of majority. This evidence creates the inference that
decedent was aware of objector’s birth, and clearly put his status as an
intentionally omitted heir at issue.
Thus, even without the extrinsic evidence set forth in respondent’s
motion, the probate court still could have found that respondent had made a
prima facie case based on the facts set forth in objector’s petition alone,
obligating objector to meet his burden of demonstrating the existence of a
disputable material fact. This he has
not done.
D. No Evidence
Supports the Inference that Decedent was Unaware of Objector’s Birth or Legal
Status
Objector does not contend that decedent
thought he was dead. Instead, he claims
a triable issue exists as to whether decedent was aware that objector was
operative will in 2007. We note respondent
presented extrinsic evidence that persuasively demonstrates decedent was aware
of objector’s birth and of his status
as the purported father. He was
subjected to a paternity lawsuit in 1963 and was ordered to pay child
support. It is undisputed that decedent
paid monthly child support until 1982, the year in which objector turned 21
years of age. There is no plausible
explanation for decedent’s conduct in making these payments other than that he
understood objector to be his child, at least in the eyes of the law.
As noted above, objector further
contends that because decedent stated in his will that he did not have any children, this denial created a triable issue as
to his awareness of objector’s status. He
concedes that “In order for the child to inherit under Section 21622 it is
necessary that the father be unaware of the child’s inheritance rights as his
child, and the child is required to prove that the father was unaware of those
rights.†He claims he can meet that
burden because decedent’s will states his father’s belief that he has no
children. However, the language on which
objector relies can be interpreted to express an intent to omit objector from
his will, rather than an indication of a lack of awareness as to objector’s
existence. As respondent notes, the fact
that decedent denied having fathered any children is not inconsistent with his having
had an abiding awareness of objector’s legal status as his presumed child. This conclusion is supported by evidence of
the 1993 will, which specifically disinherited objector by name.
We conclude that the trial court
properly found there is no triable issue of fact as to whether decedent was
unaware of objector’s birth. It follows
that the court properly concluded he is not entitled to a share of the estate
as an omitted child. Candidly, it
stretches credulity to posit that after making approximately 228 monthly child
support payments, decedent would have lost all awareness of objector’s birth or
of his status as objector’s presumed father.
Apart from pure speculation, objector does not offer any evidence
suggesting otherwise. For example, he
did not offer any evidence suggesting that decedent suffered from an age-related
cognitive impairment when he executed his will.
Speculation alone does not create a triable issue of fact. Accordingly, objector has failed to show that
the probate court erred in finding there is not a triable issue of fact as to
whether decedent was aware that objector was his child when he executed the 2007
will.
E. The
Disinheritance Clause is Valid
Objector claims the trial court
erred in finding the disinheritance clause of the subject will valid as a
matter of law. His argument presupposes
that he is entitled to recover as an unintentionally omitted heir. As we have already concluded that he does not
qualify as an omitted heir under section 21622, this argument fails. Accordingly, he has failed to demonstrate the
existence of a triable issue of material fact as to decedent’s intent to
exclude him from receiving anything from the subject estate.
The judgment is affirmed.
>
_________________________
Dondero,
J.
We concur:
_________________________
Margulies, Acting P.J.
_________________________
Becton, J.
name="_ftn1" title="">[1] All further statutory references are to the Probate Code except as
otherwise indicated.
name="_ftn2" title="">[2] We take judicial notice of our opinion in Bartsch I, and of the record in that case.
