Estate of Hall

Filed 10/10/06 Estate of Hall CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

APPEAL from a judgment of the Superior Court of Los Angeles County. Earnest G. Williams, Judge. Affirmed.

Jeanne Collachia and George Whitaker for Contestants and Appellants.

Randall & Associates and Betty G. Barrington for Proponent and Respondent.

__________________________

Appellants Lesley Hall and Tanya Dennis appeal from a judgment admitting to probate a holographic document executed by appellants’ father, Elbert Hall Jr. (“Hall”), in which Hall left his small restaurant (“Mama’s Chicken”) and a five-year lease for the commercial space the restaurant occupied to a longtime employee and business associate, respondent Karen Whitman. Appellants claim the court erred in finding the holographic document was a valid will under California law. Specifically they complain: (1) that although Hall wrote his initials in the holographic document, his use of initials did not qualify as his “signature” as a matter of law; (2) the devise in the document was invalid because it was ambiguous and purports to give away an leasehold interest which Hall did not own at the time of his death; (3) Probate Code sections 21350 and 21351 disqualified respondent from receiving the interest conveyed in the will because she and Hall had a fiduciary relationship and she participated in drafting the will; and (4) because respondent retained custody and control over the will, Hall was prevented from revoking it. As we shall explain none of these claims has merit. The court properly found the document was a valid and complete holographic will. In addition, evidence presented at the bench trial demonstrated Hall’s testamentary intent: the devise of property was identified with sufficient particularity and Hall had the right to bequeath a leasehold interest. Furthermore, there was no evidence presented that indicated respondent drafted, or transcribed the will. Finally, respondent’s retention of the holographic document did not prevent Hall from revoking the will. Accordingly, we affirm the judgment.

FACTUAL AND PROCEDURAL HISTORY

In 1968 when respondent was still in high school she began working with Hall in his businesses, a small store -- “Mama’s Good Food Market” and a small fast food restaurant --”Mama Chicken.” Both businesses were located in a commercial building owned by Hall at 2510 West Slauson in Los Angeles. During the more than thirty years that followed, respondent often ran the businesses when Hall was hospitalized with re-occurring health problems; since the age of 32 Hall was on kidney dialysis.

In 1995 Hall sold Mama’s Market to respondent and gave her a 10-year lease for the space occupied by the market. He also retained an easement for access to Mama’s Chicken because it was necessary to pass through the market to get to the restaurant.

Hall died in January 2002. Appellants filed a petition for letters of administration alleging Hall had died intestate. Thereafter respondent also filed a petition for letters of administration and a petition for probate of a will. Respondent attached to her petition two holographic documents purporting to be Hall’s will. The first handwritten document states:

“this is agreement from E.H. to K.W. in case of my death she is to owne [sic] 100% percent of Mama’s Chicken at 2508 W. Slauson. She have lease for 5y from date of death for 500.00 month to be paid to Lourie E. Johnson no other member Family is to have any thing to do with it.” (Document 1)

The second handwritten document states:

“This is an agreement from Elbert Hall Jr. to Karen Denise Whitman in case of my death, Karen Whitman is to own 100% of Mama’s Chicken at 2508 W. Slauson. Karen has a lease for five years from the date of death for $500.00 per month to be paid to Loure E. Johnson, my mother. No other family member is to have anything to do with this transaction. Feb. 22, 87.” The document is also signed ‘Elbert Hall Jr.’” (Document 2)

Respondent claimed that Document 1 was entirely in Hall’s handwriting. With respect to Document 2 she stated the date and signature were in Hall’s handwriting. She admitted, however, the other handwriting on Document 2 was hers.

Appellants filed a contest, objecting to the probate of these documents. Appellants argued the documents were not a valid will because: (1) neither document was in Hall’s handwriting or signed in a manner required to qualify as a holographic will; (2) as a result of his illness, Hall was not of sound mind when he created them; (3) respondent exercised undue influence over Hall; he did not act of his own free will; and (4) the documents were procured by fraud.

Pre-trial, the value of Hall’s estate, excluding property described in the holographic documents, was estimated at $3 million.

The court conducted a bench trial. In her pretrial papers and at the beginning of the trial, appellant asserted that Document 1 and Document 2 should be viewed together as Hall’s will. Nonetheless during the testimony of the second witness (Hall’s father) the court commented Hall’s initials in Document 1 may constitute Hall’s “signature” for the purpose of the probate statutes.

During the trial, respondent presented testimony from Hall’s sister, who identified the handwriting in Document 1 and the date and signature in Document 2 as that of her brother. She also described the nature of the Mama’s Chicken business as a small fast-food restaurant (located inside of Mama’s Market) which sold hamburgers, french fries, sausage and soft drinks. Hall’s sister also testified Hall wanted respondent to have the restaurant after his death because of her long involvement with running it. Hall’s father also testified that respondent was responsible for the restaurant; he opined that the restaurant would not exist if it were not for respondent’s efforts. Hall’s father also identified the signature at the end of Document 2 as his son’s.

Respondent testified she was present when Hall drafted Document 1 and that immediately after writing the document Hall asked her to re-write it because her handwriting was better. She testified that she therefore wrote Document 2 and Hall signed and dated it. She stated she kept the Documents folded together for 15 years. She also stated that Hall gave her the business, which she described as a small restaurant containing cooking facilities in a separate space from the market for her protection and because she had worked in the business for a long period of time. She also told the court Hall owed her money. She further testified Hall wanted his mother, Loure Johnson, to receive the lease payments from the restaurant. On cross-examination, respondent stated that at times when Hall was in the hospital either she or Hall’s daughter, appellant Tanya Dennis would often sign Hall’s name on various documents. She testified that although Hall was hospitalized and ill over the years, he was not ill when he prepared Documents 1 or 2.

Appellants presented testimony from appellants Tanya Dennis, Lesley Hall and their brother Dennis Hall, and their mother, Hall’s ex-wife. Appellant Dennis testified that Document 1 was in the handwriting of her father, but she did not believe Document 2 contained his signature. Appellant Hall testified the signature of Document 2 did not look like her father’s handwriting. Dennis Hall testified that some of the handwriting on Document 1 appeared to be that of his father, but the signature on Document 2 did not appear to be in his father’s handwriting. Hall’s ex-wife also testified that Document 2 did not have Hall’s signature.

After the presentation of evidence the court invited the parties to submit written closing arguments. In respondent’s initial closing brief, she argued Document 1 qualified as Hall’s holographic will and that Document 2 “clarifies the meaning of the prior holographic will.” She argued that Document 2 was introduced as “extrinsic evidence” under Probate Code section 6111.5 (to clarify the identities described in initials) to prove that Document 1 was a holographic will; she pointed out that Document 2 “is introduced not to be admitted as a will, but simply as extrinsic evidence to determine whether the prior admitted document constitutes a will.”

In the alternative, respondent argued that given the circumstances under which the documents were created and kept together the two documents could be considered as one valid holographic will under the theory of integration.

In their closing argument, appellants asserted that neither Document 1 nor Document 2 met the legal requirements to be a holographic will. Specifically, they contend Document 1 could not be a valid will because it was unsigned and that Document 2 did not qualify because it was not entirely in Hall’s handwriting. In addition, appellants claimed the two documents could not be integrated because the material provisions of Document 2 were not in the handwriting of Hall. Appellants also asserted that Document 2 was not a valid will under Probate Code section 21350 because respondent drafted or transcribed it. They also maintained the devise was invalid because respondent had a confidential relationship with Hall and she unduly benefited by the gift. Appellants further asserted that the documents did not qualify as a will because they did not adequately identify the property to be conveyed.

The court subsequently ruled in favor of respondent, finding Document 1 constituted a valid holographic will and would be received into evidence as Hall’s will. Concerning Document 2, the court found that Document 2 “along with the oral testimony merely identifies the various parties involved.”

Appellants timely appeal.

DISCUSSION

Before this court, appellants complain the trial court erred in admitting Document 1 to probate. Specifically, they argue: (1) Document 1 does not contain a proper “signature” and thus does not qualify as a valid holographic will; (2) the devise in the document is legally invalid as it fails to sufficiently identify the property conveyed and purports to give away an leasehold interest which Hall did not own at the time of his death; (3) respondent is disqualified under Probate Code sections 21350 and 21351 from receiving the interest conveyed in the will because she and Hall had a fiduciary relationship and she participated in drafting the will; and (4) the will is invalid because respondent retained custody and control over it which prevented Hall from revoking it. We address each of these contentions in turn.

I. Whether Document 1 is a Valid Holographic Will

Appellants claim that Document 1 does not qualify as a valid holographic will under the Probate Code because the document is not properly “signed.” Appellants contend the initials contained in Document 1 do not qualify as Hall’s signature because there was no evidence that Hall intended his initials serve as his signature. Appellants also assert Hall believed Document 1 was not complete, because he asked respondent to re-copy it and then signed Document 2 with his full name. Appellants also point out that at trial respondent conceded that Hall did not sign Document 1, and instead stated he “signed” Document 2. They further argue that evidence presented at trial suggested that when Hall signed documents he used his full name. Appellants state Hall’s sister and father identified Hall’s use of his full name (in Document 2) as his “signature.” Finally, appellants argue respondent should be estopped from arguing Document 1, standing alone, constituted Hall’s will because during trial she proceeded only on theory that Document 1 and Document 2 should be “integrated” and considered together as Hall’s will.

A. Standard of Review

Whether a document qualifies as a will under the Probate Code is a legal question subject to independent review. (In re Estate of Wong (1995) 40 Cal.App.4th 1198, 1204.) Likewise where the material findings of the court concerning the validity of the document are not based on conflicting evidence or a determination of the credibility of the witnesses, the court’s ruling is also subject to de novo review. (In re Estate of Helmar (1973) 33 Cal.App.3d 109, 112.) Nonetheless, the factual underpinnings of a ruling, including whether a document expresses testamentary intent or signatory intent, are binding on this court unless unsupported by substantial evidence. (Wong, supra, 40 Cal.App.4th at p. 1204; see Continental Insurance Co. v. Superior Court (1998) 32 Cal.App.4th 94, 108; In re Estate of Kinney (1940) 16 Cal.2d 50, 54 [“It is for the probate court in the first instance to say whether the document was ‘signed’ by the decedent, and its determination will not be disturbed unless it is without support in the evidence”]; contra, In re Estate of Macleod (1988) 206 Cal.App.3d 1235, 1243 [“When . . . the issue turns merely on interpretation we independently determine whether the will was signed”].)[1]

B. Document 1 Qualifies as a Valid Holographic Will

Under California law testamentary transfers are governed by statute. “The traditional method for making a valid will is that specified in Probate Code section 6110: a written instrument is signed by the maker of the will or testator, and witnessed by two witnesses who are present when the testator signs or acknowledges his signature. Probate Code section 6111 provides an exception to the foregoing formalities, and makes valid a ‘holographic’ or handwritten will ‘if the signature and the material provisions are in the handwriting of the testator.’” (Estate of Brenner (1999) 76 Cal.App.4th 1298, 1301; Prob. Code, § 6111.)

In terms of the “signature” requirement “[t]he use of initials as a signature [is] an effective signing of the will.” (Estate of Morris (1969) 268 Cal.App.2d 638, 640.) In addition, the signature need not appear the end of a holographic will. It may appear anywhere in the document, provided the “signature” was made with “signatory intent,” i.e., the intent to authenticate the will. (Estate of Bloch (1952) 39 Cal.2d 570, 572.)

When the signature appears at the end of the document, signatory intent may be inferred. (Estate of Kinney, supra, 16 Cal.2d at p. 53.) Where the signature appears elsewhere in the document the courts look to other evidence to determine signatory intent. Specifically, the courts examine the completeness of the document as a testamentary instrument. If the document is complete, then the handwritten name will be considered a signature under Probate Code section 6111. (See Estate of Black (1982) 30 Cal.3d 880, 888, & see append. [“I, Frances B. Black” at top of each page held sufficient].) In fact, “[w]herever it has appeared that a holographic testamentary instrument was a complete declaration of the decedent’s desires, such instrument has been admitted to probate although the decedent wrote his name only in the beginning of the declaration. This has been so even where there was no expression by the testator affirmatively adopting the name so placed as his signature to the will. Completeness alone has been held sufficient evidence of the adoption of the name so placed as the authenticating signature of the testator and as a compliance with the statute which requires the will to be ‘signed.’” (Kinney, supra, 16 Cal.2d at pp. 54-55.)

Moreover, the court may also consider extrinsic evidence under Probate Code 6111.5, concerning the purpose of the signing and the completeness of the document. (See Prob. Code § 6111.5 [“Extrinsic evidence is admissible to determine whether a document constitutes a will pursuant to Section 6110 or 6111, or to determine the meaning of a will or a portion of a will if the meaning is unclear”].)

Document 1 does not appear to be incomplete. It identifies the property conveyed, the parties involved and contains words of donative intent [“in case of my death [respondent] is to own”]. The will does not end in mid-thought or mid-sentence. It concerns only one small aspect of Hall’s estate. We are not persuaded the existence of Document 2 proves Document 1 is incomplete. Hall asked respondent to re-copy Document 1 solely because her handwriting was better. There is no evidence he made the request because he felt there was something material missing from Document 1. As the court in Kinney made clear, respondent was not required to prove Hall placed his initials in Document 1 with the intent his initials serve as his signature.

Furthermore, contrary to appellants’ contention, this case is not controlled by Estate of McNamara (1953) 119 Cal.App.2d 744. In McNamara, the testator, McNamara created a holographic document in which he left his nephew, Mr. Ritchie, a number of properties and funds in a bank account. Nowhere in McNamara’s handwritten document, however, did he identify himself or sign his name; he referred to himself in the document as “I.” McNamara asked his nephew to recopy the document because McNamara could not “spell so well.” Mr. Ritchie recopied it and McNamara signed and dated the second document and also wrote: “I have read the above statement.” After McNamara’s death Mr. Ritchie offered only the second writing to probate arguing that the first paragraph (in Ritchie’s handwriting) of the second document should be incorporated into the portions of the document in McNamara’s handwriting. The trial court rejected the second document because it was not entirely written, signed and dated by McNamara and because the first paragraph in Ritchie’s handwriting could not be incorporated by reference. (Id. at p. 746.) The court of appeal agreed finding that the two portions of the second document could not be incorporated and considered as a valid holographic will because there was nothing on the face of the document to indicate that the portion Ritchie wrote was intended to be incorporated into the portion in McNamara’s handwriting. (Id. at p. 747.) In dicta the court also noted, that had McNamara subscribed his name to the first document then he would have created a valid holographic will. (Id. at p. 746.)

Although McNamara has factual similarities to this case, it does not assist appellants’ cause. In contrast to this case, the proponent of the will in McNamara relied only on the theory of integration. It does not appear he argued the first document (entirely in the handwriting of McNamara) qualified as a valid holographic will standing alone. In addition, unlike in McNamara, Document 1 here clearly identifies Hall by use of his initials, and pursuant to Probate Code section 6111.5, Document 2 serves as extrinsic evidence to clarify the meaning of Document 1. There is nothing in McNamara’s first handwritten document which could be construed as his signature and extrinsic evidence would not have been admitted to show that the “I” used in the first document was McNamara.[2]

We are also not convinced Hall’s only means of signing his name was to subscribe his full name. The evidence presented at trial indicated Hall authenticated documents in a number of ways, he signed his full name as he did in Document 2, he identified himself by using his initials, and he allowed respondent and appellant Dennis to authenticate documents on his behalf.

Finally, we reject appellants’ estoppel argument. Appellants assert respondent should be precluded from claiming Document 1, standing alone, constituted Hall’s will because respondent did not offer this theory until “post-trial.” We disagree. The notion Hall’s initials in Document 1 might constitute his signature and that therefore Document 1 was a valid will emerged during trial before appellants presented their case in chief. Appellants had sufficient opportunity to present the “mountain of evidence” they claim existed to prove that Hall had only one method of signing his name and authenticating documents. Furthermore they had ample opportunity to argue the theory below. Respondent addressed it in her first closing brief and appellants addressed it in a pre-trial brief and in their closing argument brief.

In short, while Hall may have been experienced in his businesses there was no indication he or respondent[3] understood the precise legal requirements of a holographic will. Nonetheless what is clear is that Hall wanted to give respondent Mama’s Chicken and a lease after his death, and the trial court so found. “[W]hen the instrument on its face shows that it was written by an inexperienced . . . person, it should be construed more liberally than if it had been drawn by an expert. [Citation.]” (Estate of Lampkin (1962) 203 Cal.App.2d 374, 376.)

The law favors testacy over intestacy. (Estate of Lampkin, supra, 203 Cal.App.2d at p. 376.) Thus, “‘[t]he policy of the law is toward “a construction favoring validity, in determining whether a will has been executed in conformity with statutory requirements” [citations].’ [Citation.] Moreover, . . . ‘”the tendency of both the courts and the Legislature [is] toward greater liberality in accepting a writing as an holographic will . . . .”’ [Citation.] ‘”Substantial compliance with the statute, and not absolute precision is all that is required. . . .”’ [Citation.]” (Estate of Black, supra, 30 Cal.3d at p. 883.)

We conclude that the language of the instruments and the evidence can be construed to show substantial compliance with Probate Code section 6111. The court did not err in admitting Document 1 to probate.

II. Whether the Devise of Property in Document 1 is Valid

Appellants also contend that even if Document 1 otherwise qualifies as a holographic will, the devise of property is defective because (a) it does not contain legally operative words to create a valid devise; and (b) because Hall had no right to bequeath a leasehold interest.

A. “Mama’s Chicken”

No particular words are necessary to create a will. (Estate of Button (1930) 209 Cal. 325, 331.) “‘It is undoubtedly the general rule . . . that the 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.’” (Ibid., italics added.) Testamentary intent is the intent to make a revocable disposition of property to take effect upon death. (Estate of Sargavak (1950) 35 Cal.2d 93, 95; Estate of Wunderle (1947) 30 Cal.2d 274, 280-281.) Nonetheless, every will must contain operative words legally sufficient to create a devise of property. (Estate of Wong, supra, 40 Cal.App.4th at p. 1208.) Such operative words must (1) describe the property meant to be conveyed and (2) express donative intent. (Id. at p. 1207 [“Testamentary intent may be found when the decedent uses words indicating a transfer of specified property upon the death of the testator”].) Extrinsic evidence is admissible to determine the meaning of words used in a will. (Prob. Code, § 6111.5; Estate of Wong, supra, 40 Cal.App.4th at pp. 1205, 1207-1208.)

In their closing argument brief and before this court, appellants maintain the words “Mama’s Chicken” are too vague and ambiguous to constitute a valid devise of property. They raise questions concerning the meaning of “Mama’s Chicken” and what exactly Hall meant to convey when he used the terms.

No confusion, however, was expressed during the trial as to the meaning of “Mama’s Chicken.” In Document 1, Hall described “Mama’s Chicken” as located at 2508 W. Slauson. Testimony presented at trial also showed “Mama’s Chicken” was a small fast food restaurant selling drinks and various fast food items, located in a commercial space connected to “Mama’s Market.” The fact Hall bequeathed respondent a five-year lease for the location indicates he intended for her receive the restaurant itself, rather than the underlying property. At no time during the presentation of the evidence did appellants raise any challenge or express any doubts about the meaning of the words. All parties appeared to understand that “Mama’s Chicken” meant the small fast food restaurant.

Court’s have recognized the descriptions of property equally and even less defined than as here. For example, in Estate of Lampkin, supra, 203 Cal.App.2d 374, the following words were sufficient to require a consideration of surrounding circumstances to determine whether they were written with testamentary intent: “‘to Whom it May Concern. I here by do give it Jim Smith. who live at 3444 Phelp St. all of the Junk around here in my Cabin and Yard old Cars and Every thing. R. C. Lampkin.’” (Id. at pp. 375-376.) In an early case, the Supreme Court upheld a finding that the following letter had been written with testamentary intent: “DEAR OLD NANCE: I wish to give you my watch, two shawls, and also five thousand dollars. ‘Your old fried,’ ‘E. A. Gordon.’” (Clarke v. Ransom (1875) 50 Cal. 595, 599.) In Estate of Button, supra, 209 Cal. 324, the Supreme Court found testamentary intent in words, “‘You can have the house . . . and all things of value.’” (Id. at p. 332, italics added.)

In view of the foregoing, we conclude the will contained a legally sufficient description of the property Hall intended to bequeath to respondent.

B. Five-Year Lease

Also without merit is appellants claim, raised for the first time on appeal, that Hall had no legal right to bequeath respondent a leasehold interest for the space occupied by Mama’s Chicken. They claim that at the moment of his death “his property interest in all of his real property as well as all of his other property passed to his intestate heirs [his three children] [and Hall] no longer had any legal right to grant a leasehold estate to [respondent].” Appellants explain that Hall could not devise a leasehold interest to respondent unless Hall had devised a greater estate to someone else subject to [respondent’s] five-year leasehold interest. Their argument suggests that a testator may not convey anything less than full and complete interest in property.

Appellants have no legal authority for this position, nor have we found any to support it. It is true that when a decedent dies intestate, the heirs acquire an interest in the estate by operation of law at the moment of death. (Mannheim v. Superior Court (1970) 3 Cal.3d 678, 691.) Nonetheless, where, as here, the decedent has a valid will, the heirs receive an interest subject to will. (Prob. Code, § 6400 [“Any part of the estate of the decedent not effectively disposed of by will passes to the decedent’s heirs . . .”].) There is no apparent legal prohibition to a testator conveying a partial (and temporary) interest in property to one beneficiary with the remainder of the interest passing to the decedent’s heirs. Consequently, appellants have not convinced us the devise of a leasehold interest to respondent fails as a matter of law.

III. Whether Respondent is Precluded From Receiving the Property Interests Described in Document 1 Because She had a Fiduciary Relationship With Hall and She Participated in Drafting the Will

Appellants claim Probate Code section 21350 precluded respondent from receiving the interests conveyed in Document 1. They also claim respondent exerted undue influence over Hall causing him to create the will. We do not agree.

It is well established a will is invalid if procured by undue influence. (Rice v. Clark (2002) 28 Cal.4th 89, 98.) In this context, undue influence is “pressure brought to bear directly on the testamentary act, sufficient to overcome the testator’s free will, amounting in effect to coercion destroying the testator’s free agency.” (Ibid.) Ordinarily a party challenging a testamentary instrument shoulders the burden to prove that a beneficiary under a will exerted undue influence over the decedent. (Ibid.) Court’s have recognized however that the presumption of undue influence, shifting the burden of proof, arises upon the challenger’s showing that “(1) the person alleged to have exerted undue influence had a confidential relationship with the testator; (2) the person actively participated in procuring the instrument’s preparation or execution; and (3) the person would benefit unduly by the testamentary instrument.” (Id. at p. 97.)

The Legislature has supplemented this case law with, among related provisions, Probate Code section 21350, which provides in pertinent part:

“(a) Except as provided in Section 21351,^[[4]^] no provision, or provisions, or any instrument shall be valid to make any donative transfers to any of the following:

“(1) The person who drafted the instrument. . . . (4) Any person who has a fiduciary relationship with the transferor, . . . who transcribes the instrument or causes it to be transcribed.” (Prob. Code, § 21350, subd. (a).)”

In this context, to draft the instrument is the act of “creating or composing the contents of the document.” (Swetmann v. Cushing (2000) 85 Cal.App.4th 807, 819.) Transcription occurs after the document is drafted. (Ibid.) To transcribe is to copy or write out a document in its final written form. (Id. at p. 817; Rice v. Clark, supra, 28 Cal.4th at p. 101.) “A person who causes the document to be transcribed is one who directs the drafted document to be written out in its final form.” (Swetmann v. Cushing, supra, 85 Cal.App.4th at pp. 819-820; in accord, Rice v. Clark, supra, 28 Cal.4th at p. 102.)

Respondent concedes she had a fiduciary relationship with Hall. It is also uncontested respondent transcribed Document 2. However, at issue here is the validity of Document 1, which undisputed evidence demonstrated was in the handwriting of Hall. Thus, the question becomes whether respondent created or composed the contents of Document 1 and/or caused Hall to transcribe it. There is no direct evidence respondent drafted Document 1 or that she directed Hall to write it. Nor is there any suggestion in the record that Hall’s free will was overcome when he created Document 1.

“While undue influence may be proved by circumstantial evidence, [citations] proof of circumstances consistent with undue influence is insufficient--the proof must be circumstances inconsistent with voluntary action.” (In re Estate of Mann (1986) 186 Cal.App.3d 593, 607.) “[M]ere opportunity to influence the mind of the testator, even coupled with an interest or a motive to do so, is not sufficient.” (In re Estate of Welch (1954) 43 Cal.2d 173, 175.) “There must be activity by the beneficiary in actual preparation of the will.” (Estate of Mann, supra, 186 Cal.App.3d at p. 607.) To warrant setting aside a will on the ground of undue influence, there must be substantial proof of pressure that overpowers volition of the testator and operates directly upon testamentary acts. (In re Estate of Lombardi (1954) 128 Cal.App.2d 606, 611.)

Respondent was present when Hall created the will and recopied it for his signature. She also testified he owed her money and he wanted her to have the restaurant. The evidence also indicated Hall had physical and health problems throughout his adult life causing him periods of physical incapacity, though no evidence was presented he was physically or mentally incapacitated at the time Document 1 was created.

At most, taken together this evidence showed appellant may have had motive and opportunity to influence Hall. It does not, however, demonstrate she sought to determine the contents of Document 1, was directly involved in Hall writing Document 1, or that she otherwise actively participated in procuring the instrument’s preparation or execution. “‘A will cannot be overturned on the mere speculation or suspicion that undue influence may have been used to procure it.’” (Estate of Mann, supra, 186 Cal.App.3d at p. 608.)

In sum, there is not sufficient evidence in the record before this court to trigger either Probate code section 23150 or 21351 or to show undue influence under the common law.

IV. Whether Hall Could Have Revoked the Will

As their final attack on the validity of Document 1, appellants assert for the first time on appeal that because respondent maintained possession of Document 1, Hall did not have the opportunity to revoke it and may not have even known he needed to revoke the will. They also argue that the 1995 contract between Hall and respondent for the sale of Mama’s Market further demonstrates that he was unaware that Document 1 existed and that he needed to revoke it.[5] As with the other claims we have examined, this one also fails.

A testator need not have actual possession of a will to revoke it. Pursuant to Probate Code section 6120 a will is revoked by, among other actions, the creation of a subsequent will that revokes the prior will expressly or by inconsistency. (Prob. Code, § 6120, subd. (a).) Thus, although respondent maintained possession over Document 1, Hall could always have revoked it by drafting a subsequent will disposing of the property. There was no evidence presented below indicating Hall drafted another will concerning the property at issue. In addition, appellants did not argue or present any evidence: (1) Hall was unaware that Document 1 existed; (2) Hall wanted to revoke it; and/or (3) Hall did not know he needed to revoke Document 1. In addition, the existence of the 1995 contract for the sale of Mama’s Market, (which was not introduced at trial), does not show Hall was unaware of Document 1. On its face, the 1995 contract appears to concern only the Mama’s Market property, not Mama’s Chicken--the subject of Document 1. Thus, the 1995 contract and Document 1 concern entirely distinct matters and existence of the contract reveals nothing about Hall’s awareness of Document 1.

Consequently, appellant’s revocation argument is unavailing.

DISPOSITION

The judgment is affirmed. Respondent is entitled to her costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

WOODS, J.

We concur:

JOHNSON, Acting P.J.

ZELON, J.

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Analysis and review provided by Poway Property line Lawyers.

[1] The parties dispute the applicable standard of review. Nonetheless, whether review is governed by independent review or a more deferential substantial evidence standard is not dispositive in this appeal. We would reach the same conclusion under both standards.

[2] When McNamara was decided (well before section 6111.5 was enacted) extrinsic evidence was not admissible to determine whether a document was a valid will or to determine the meaning of a will. (See Estate of Bloch, supra, 39 Cal.2d at p. 572; Estate of Glass (1958) 165 Cal.App.2d 380, 384.)

[3] This was clearly underscored during trial when the respondent testified Hall “signed” Document 2, and when counsel referred to Document 1 as an “unsigned” document. Read in context these references identified instances when Hall subscribed his full name; they do not necessarily determine whether Document 1 expresses “signatory intent” under the law.

[4] Section 21351 provides in relevant part: “Section 21350 does not apply if any of the following conditions are met: (d) The court determines, upon clear and convincing evidence, but not based solely upon the testimony of any person described in subdivision (a) of Section 21350, that the transfer was not the product of fraud, menace, duress, or undue influence. . . .” (Prob. Code, § 21351, subd. (d).) Subdivision (d) does not apply to a person who drafted the instrument. (See Prob. Code, § 21351, subd. (e)(1).) In other words, the presumption of the existence of undue influence is rebuttable as to a fiduciary who transcribed (or caused the transcription of) an instrument, but is conclusive as to the person who drafted the instrument.

[5] Near the end of the 1995 contract for the sale of Mama’s Market, the document states: “any and all prior Agreements between Elbert Hall Jr. and Karen D. Whitman are canceled, void as if they never existed.” In their reply brief on appeal, appellants go so far as to suggest that because Document 1 uses the word “agreement,” “it is likely that ‘Document 1’ was a Contract between [respondent] and [Hall] that was rescinded in 1995.” Appellants did not assert this argument in the trial court, and in any event, the evidence presented at trial demonstrates Hall intended Document 1 to be a will, not a contract. With the exception of the word “agreement,” all of the other language used in Document 1 is consistent with an intent to make a donative transfer at the time of Hall’s death. Moreover, the 1995 Agreement is not a will, thus could not serve to revoke Document 1.