Estate of McBride

Filed 8/16/07 Estate of McBride CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

Larraine McBride appeals from a judgment denying her petition to admit to probate an unsigned copy of a will of her mother, Electra Odille McBride (hereafter the decedent), and granting the petition of her brother, Harry McBride, respondent, for letters of administration. Appellant contends that the trial court erroneously concluded that the decedent had revoked her will. We agree and reverse.

Factual and Procedural Background

The decedent was 99 years old when she died in May 2004. On April 29, 1975, the decedent executed her will, which consisted of two pages. On the second page of the will, the decedent signed her name and two persons signed as witnesses: the decedent's attorney, Karl Bledsoe, and Carol Eason. Bledsoe retained the original signed will and gave decedent an unsigned copy.

In 1990, appellant saw a copy of the will in the decedent's safe deposit box. Appellant saw the copy again in 2002 when she "cleaned out" the safe deposit box because the decedent was moving to Santa Maria. Appellant put the copy in another safe deposit box at Bank of America in Santa Maria. When appellant saw the will in 1990 and 2002, it was inside a "folder" that was open at the top. She looked only at the first page of the will.

A few days before the decedent died, appellant retrieved the copy of the will from the decedent's safe deposit box. The will was inside an envelope on which was written, "Copy of Will of Odille McBride executed on April 29, 1975[.] Original in custody of attorney." Below these words were the name and address of Karl Bledsoe.

The day after the decedent died, appellant read the copy of the will. She was surprised to find that the second page of the will was unsigned. The will states that the decedent has four children: Alice Johnson (Alice), F. Cameron McBride (Cameron), appellant, and respondent. The will bequeaths decedent's residence, together with its furniture and furnishings, to appellant. The decedent's "securities" are bequeathed in equal shares to Cameron and respondent. Her remaining "personal effects" are bequeathed in equal shares to Alice and appellant.

Appellant retained an investigator, Leslie Yarnes, to try to locate the original signed will, but he was unsuccessful. Bledsoe had died in approximately 1992. Yarnes determined that the executor of Bledsoe's estate was represented by Lino Guslani, who was also deceased. Guslani's estate "was represented by a Mr. Miller," who had no knowledge of the whereabouts of Bledsoe's files. Yarnes contacted Bledsoe's daughter, who said that "it had been [Bledsoe's] practice to retain original documents in his files." The daughter said that, when he died, Bledsoe was not actively practicing law and that he had not sold his practice.

In 1996 Attorney Robert Vale occupied office space that had formerly been leased to Guslani, who had died earlier that year. In the office space Vale found a file drawer containing approximately 130 wills. Vale examined some of the wills and determined that they were originals. Vale also found "a manual index" that had been prepared for the wills in the file drawer. The index was entitled "Connelly & Bledsoe Original Wills." The index indicated that the client files relating to the wills had been destroyed. The decedent's name was not listed on the index, and Vale was unable to locate decedent's original will. Vale was "not aware of what happened to all of the client files and all of the estate planning documents which had been left by . . . Bledsoe[] when he died . . . ."

Respondent filed a petition for letters of administration claiming that the decedent had died intestate. Appellant filed opposition to the petition and also filed a petition to probate the unsigned copy of the will that she had found in the decedent's safe deposit box.

At trial appellant testified that she had lived with and taken care of decedent for the entirety of her (appellant's) life. In approximately 1980, the decedent said she wanted to distribute her cash and securities equally among her four children. She was concerned because the securities had become worth more than the cash. The decedent, however, never changed her will. Appellant told her that the four children would split up the cash and securities after her death and that she should "not worry about it." This was acceptable to the decedent.

At the time of her death, decedent's cash and securities were held in joint accounts in the name of the decedent and appellant. Appellant's attorney told her that, as the surviving joint tenant, she was legally entitled to all of this property. However, in view of her mother's wishes, she distributed the cash and securities equally among the four children. Each child received a check of $41,416.89. According to appellant, the estate's sole assets were a $500 life insurance policy and the residence, which had been willed to her. Appellant valued the residence at between $450,000 and $500,000. The residence was not encumbered by a mortgage or tax lien.

Appellant further testified that, if in 1975 the decedent's property had been distributed pursuant to the terms of the will, the four children would have received approximately equal shares. Although the will left very little to Alice, in 1975 she shared a joint bank account with the decedent that would have passed to her outside the will. Appellant opined that in 1975 the residence was worth approximately $30,000.

During respondent's testimony, he acknowledged that appellant had lived with the decedent for "almost [appellant's] entire life" and had taken "care of her in the last years of her life." According to respondent, the decedent had told him that she did not want appellant to have the house: " ' [Appellant] thinks this is her house. It's my house, and she's not getting it. I'm not selling it.' " " '[Appellant's] just trying to sell the house out from under me. But this is my house.' "

Brian McBride, the decedent's grandson, testified that in 1997 he was visiting the decedent at her residence. While looking at family photographs that were kept inside a cabinet, he found an empty "manila [folder] with a little tab on it." On the folder was written "mother's will" or "ma's will." Brian did not ask the decedent about the folder. He said, " 'Grandmother[,] do you have a will[?]" The decedent replied, " 'No, I don't have a will.' " She then "chuckled a little. And she said, I guess you'll just have to fight for it."

Susanne McBride was the decedent's daughter-in-law. She testified that in 1989 she drove the decedent to the bank. The decedent was very upset. At the bank the decedent signed papers to "make sure she got [appellant's] name off of everything." The decedent "made sure that every account that she had at the bank . . . that was joint . . . with [appellant] had [appellant's] name removed." When the decedent returned to Susanne's car, "she was jubilant." She said,: " '[Appellant] thinks that she's the boss, but now I'm the boss.' " " 'I don't know what's wrong with [Appellant].' "

In approximately 1995, the decedent told Susanne that "she didn't believe in wills. She didn't like wills. She thought they were bad luck." The decedent also said that she had no will. In about 1998, Susanne said to the decedent, "[Appellant] told me that you're leaving the house to her." The decedent replied, " 'Where'd you hear that?' " Susanne said, "[Appellant] just told me." The decedent replied, "[W]ell she's got another thing coming to her. She's going to be surprised."

Trial Court's Ruling

A statement of decision was not requested. The court concluded that, although the copy of the will was unsigned, the original had been duly executed. Respondent does not contest this conclusion. But the court also concluded that the decedent had revoked the will. The court found that the decedent was not incompetent, and that she had intended to "change the provisions of the 1975 will" to "redistribute her estate" because the house had gone "way up" in value. The court said that "[m]aybe" the envelope in the decedent's safe deposit box had contained "two wills, a copy and the original in there and she took the original out." The court stated: "There's so many scenarios that match this. But I think that the testimony is undisputed that . . . time had marched on and inflation had done things and it was no longer an even distribution and that [decedent] wanted to change it. . . . I think that [the decedent's] expressed intent was to redo the 1975 will and I therefore think that she revoked it."

The Trial Court Erroneously Concluded

that the Decedent Had Revoked Her Will

"The provisions of the Probate Code relative to the revocation of wills are specific and revocation can be made only in the manner and by the means prescribed therein." (In re Holmes' Estate (1948) 88 Cal.App.2d 360, 365.) The relevant provision here is Probate Code section 6120, subdivision (b),^[1]which provides that a will is 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 testator's presence and by the testator's direction."

Section 6124 creates a presumption of revocation under specific circumstances. It provides: "If the testator's will was last in the testator's possession, the testator was competent until death, and neither the will nor a duplicate original of the will can be found after the testator's 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." "The effect of a presumption affecting the burden of producing evidence is to require the trier of fact to assume the existence of the presumed fact unless and until evidence is introduced which would support a finding of its nonexistence, in which case the trier of fact shall determine the existence or nonexistence of the presumed fact from the evidence and without regard to the presumption." (Evid. Code,   604.)

Respondent "as the proponent of the presumption bore the burden of proving by a preponderance of the evidence the basic or foundational facts" that triggered the presumption. (Xebec Development Partners, Ltd. v. National Union Fire Ins. Co. (1993) 12 Cal.App.4th 501, 545, disapproved on other grounds in Essex Ins. Co. v. Five Star Dye House, Inc. (2006) 38 Cal.4th 1252, 1265, fn. 4.) The trial court did not expressly invoke the presumption. Respondent, however, argues that the trial court impliedly found that he had met his burden of proving the foundational facts by a preponderance of the evidence. Respondent relies on the rule that, "[i]n the absence of a statement of decision, the appellate court will presume that the trial court made all factual findings necessary to support the judgment for which substantial evidence exists in the record." (Slavin v. Borinstein (1994) 25 Cal.App.4th 713, 718.)

" 'In determining whether a judgment [or finding] is supported by substantial evidence, we may not confine our consideration to isolated bits of evidence, but must view the whole record in a light most favorable to the judgment [or finding], resolving all evidentiary conflicts and drawing all reasonable inferences in favor of the decision of the trial court. [Citation.] We may not substitute our view of the correct findings for those of the trial court . . . ; rather, we must accept any reasonable interpretation of the evidence which supports the [factfinder's] decision. However, we may not defer to that decision entirely. "[I]f the word 'substantial' means anything at all, it clearly implies that such evidence must be of ponderable legal significance. Obviously the word cannot be deemed synonymous with 'any' evidence. It must be reasonable in nature, credible, and of solid value; it must actually be 'substantial' proof of the essentials which the law requires in a particular case." [Citations.] []  . . . [A] judgment [or finding] may be supported by inference, but the inference must be a reasonable conclusion from the evidence and cannot be based upon suspicion, imagination, speculation, surmise, conjecture or guesswork. [Citation.] Thus, an inference cannot stand if it is unreasonable when viewed in light of the whole record. [Citation.]' " (McRae v. Department of Corrections and Rehabilitation (2006) 142 Cal.App.4th 377, 389.)

Substantial evidence does not support the foundational fact that "the testator's will was last in the testator's possession." ( 6124.) This foundational fact "does not refer to possession at the time of death. It only requires that when it was last seen or known to exist, it was in his possession." (In re Flood's Estate (1941) 47 Cal.App.2d 809, 813.)

When the decedent's will was last seen or known to exist, it was not in her possession; it was in Bledsoe's possession. The evidence indicates that, after the decedent executed the original will in 1975, Bledsoe put it in his briefcase and retained possession of it. In his brief respondent acknowledges that the will "was originally deposited with [Bledsoe]." Respondent further states, "[U]pon execution in 1975, Mr. Bledsoe took the will with him . . . ." The envelope in the decedent's safe deposit box stated that the original will was in Bledsoe's custody. If the original will had been returned to the decedent, why would she have left this envelope in her safe deposit box to mislead her heirs? "[T]he presumption of revocation does not apply, or is overcome and is rebutted, where it appears that the will was deposited by the deceased with a custodian and that the deceased did not thereafter have it in her possession or have access to it. [Citations.]" (Estate of Ross (1926) 199 Cal. 641, 647.)

The decedent's original will was not among the 130 wills found in a file drawer in the office occupied by Guslani before he died. But it cannot be reasonably inferred from this fact that the original will had been returned to the decedent. No evidence was presented that the file drawer contained all of the original wills in Bledsoe's possession when he died. Robert Vale, who found the 130 wills, was "not aware of what happened to all of the client files and all of the estate planning documents which had been left

by . . . Bledsoe[] when he died . . . ."

Respondent contends that, pursuant to sections 731 and 735, it may be presumed that upon Bledsoe's death the original will was returned to the decedent. But these sections do not support such a presumption. Section 731 provides several methods by which an attorney may terminate the deposit of a document. Section 735 lists the persons who may terminate the deposit of a document with an attorney who is deceased. The record contains no evidence showing that the deposit of the original will with Bledsoe was terminated by him during his lifetime or was terminated after his death by any of the persons listed in section 735.

Since substantial evidence does not support the foundational fact that the decedent's will was in her possession when it was last seen or known to exist, the presumption of section 6124 was never triggered. We must therefore determine whether substantial evidence supports the trial court's implied findings that the decedent's will was "burned, torn, canceled, obliterated, or destroyed, with the intent and for the purpose of revoking it, by either (1) the [decedent] or (2) another person in the [decedent's] presence and by the [decedent's] direction." ( 6120, subd. (b).)

Substantial evidence does not support these implied findings. Even if in 1989 the decedent was upset with appellant and removed her name from their joint bank accounts, it cannot be reasonably inferred that the decedent destroyed the original will, or directed another person to destroy it in her presence, with the intent of revoking the will.

In 1997 the decedent's grandson found an empty folder inside a cabinet in the decedent's residence. On the folder was written "mother's will" or "ma's will." It cannot be reasonably inferred that the folder had contained the original will and that it was empty because the decedent had destroyed it.

In 1995 and 1997 the decedent said that she did not have a will. Moreover, in 1998, the decedent said that appellant had "another thing coming to her" and was "going to be surprised" if she believed that she would inherit the decedent's residence. But these statements were made to family members other than appellant. The decedent reasonably would not have wanted them to know that she had a will leaving the bulk of her estate to appellant.

On the other hand, the decedent may have forgotten that she had a will. The decedent's statements about not having a will were made 20 years or more after the execution of her will when she was in her nineties. "Where a valid will exists which the testator has forgotten and the evidence tends to show that he regarded himself as intestate, a revocation is not thereby accomplished. [Citation.]" (In re Padgett's Will (1964) 54 Tenn.App. 1, 10, 387 S.W.2d 355, 359; accord, Grimes v. Nashville Trust Co. (Tenn. 1940) 141 S.W.2d 890, 892; see also Estate of Guerrero (1986) 183 Cal.App.3d 723, 730-731 [no revocation occurs where testator mistakenly believes that he does not have a valid will].)

Even if the decedent's statements could reasonably be construed as manifesting an intent to revoke her will, such an intent could not have accomplished a revocation because it was not accompanied by the destruction of the original will. This principle is illustrated by Estate of Silva (1915) 169 Cal. 116. In Silva the decedent asked his wife to destroy his will, and she burned an envelope in his presence that she said contained the will. In fact the envelope did not contain the will, so it was not destroyed. The decedent, however, continued to believe until his death that his will had been destroyed. Our Supreme Court concluded that the evidence was insufficient to show a revocation of the will despite the decedent's clear intent to revoke. The court reasoned: "In order to constitute such revocation, there must be an actual burning, tearing, canceling, obliteration, or destruction, with the intention to revoke the document as a will. The mere intent unperformed, to destroy or burn the will, is not sufficient. There must be a joint union of act and intent in order to accomplish the revocation. [Citations.]" (Id., at p. 121.)

Accordingly, irrespective of the decedent's intent, the evidence is insufficient to show a revocation because there is no substantial evidence that there was a joint union of that intent with the decedent's destruction of the original will.

Disposition

The judgment is reversed with directions to admit to probate the unsigned copy of decedent's will. Appellant shall recover her costs on appeal.

NOT TO BE PUBLISHED.

YEGAN, Acting P.J.

We concur:

COFFEE, J.

PERREN, J.

Zel Canter, Judge

Superior Court County of Santa Barbara

______________________________

Price, Postal & Parma; Melissa J. Fassett and Timothy E. Metzinger, for Appellant.

Wittenburg, O'Neill & Gray; George L. Wittenburg, for Respondent.

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^[1]All statutory references are to the Probate Code.