Estate of Stoker – filed March 3, 2011, Second District, Div. Six. Cite as 2011 S.O.S. 1274
This case involves two issues under California Law that are seen and dealt with in the Probate Code.
One issue is the required “Notification by Trustee” to all beneficiaries and heirs-at-law upon a trust [or portion thereof] becoming irrevocable [see California Probate Code Section 16061.7].
The operative language of such a notice is:
“No person upon whom the notification by the trustee is
served pursuant to this chapter may bring an action to
contest the trust more than 120 days from the date the
notification by the trustee is served upon him or her, or 60
days from the day on which a copy of the terms of the
trust is mailed or personally delivered to him or her
during that 120-day period, whichever is later.”
The time line was as follows: On May 22, 1997, decedent executed a will and nominated Gularte to be the executor of his estate. In article two of the will, he listed Karotick and Gularte as the beneficiaries of gifts of personal property. In article three, he stated, “I give the residue of my estate to the trustee of the 1997 Steven Wayne Stoker Revocable Trust, created under the declaration of trust executed on the same date as, but immediately before, the execution of this will . . . .” Gularte was listed as the successor trustee of that trust. Decedent died on February 27, 2008.
On March 17, 2008, Gularte filed a petition to probate the will and requested that she be appointed the executor.
On March 18, Gularte served a notice to decedent’s children (respondents) that pursuant to sections 16061.7 and 16061.8, they had 120 days to bring an action to contest the trust.
On March 25, Pradia filed an objection to Gularte’s petition to probate the 1997 will and claimed that her father had executed a more recent will. She objected to Gularte being appointed executor.
On April 28, respondents filed a petition to probate a handwritten will signed by their father on August 28, 2005.
In Stoker, the court held that, where the petition to admit the will to probate had the practical effect of challenging an earlier trust, the filing of the petition was an “action to contest the trust” within the meaning of California Probate Code Sec. 16061, which requires that such an action be brought within 120 days following service of notice by the trustee.
The Court held that the petition to probate the 2005 will is, “in practical effect,” an action challenging the validity of the trust. (Silberman v. Swoap, supra, 50 Cal.App.3d at p. 571.) Respondents’ petition was timely filed within the 120-day period. Filing a second petition labeled as an action to contest the trust would amount to unnecessary duplication.
The second issue of Estate of Stoker was California Probate Code Section 6110(c)(2) (once again effective January 1, 2009) which allows, where a will is not executed in compliance with the statutory requirements for witnesses, that “the will shall be treated as if it was executed in compliance with [the requirements for witnesses] if the proponent of the will establishes by clear and convincing evidence that, at the time the testator signed the will, the testator intended the will to constitute the testator’s will.”
The simple facts of the case concerning revocation of the will are: Steven Wayne Stoker signed a will in 1997. In it he left some items of personal property to friends, but the residue (and bulk) of his estate was to go to the Steven Wayne Stoker Revocable Trust, which he had signed that same day. The trust named his girlfriend, Destiny Gularte, as trustee and beneficiary. At some point they had a break up. Gretchen Landry, a friend of decedent’s, testified that in 2001 decedent took Mr. Stoker original copy of the 1997 will, urinated on it and then burned it. The Court felt that decedent’s actions lead to the compelling conclusion he intended to revoke the 1997 will.
The appellate Court held that the trial court did not err in admitting it to probate under Section 6110(c)(2) based on clear and convincing evidence of decedent’s intent in the form of testimony by two witnesses who saw him sign it. Public policy in favor of validating wills that reflect decedents’ intent supports retroactive application of Sec. 6110(c)(2) [which was effective as of January 1, 2009] to wills executed before its effective date. Lack of testamentary language, the absence of the use of the word “will,” or reference to death did not preclude finding that document was intended by decedent to be his will.
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