Hecht v. Superior Court

• Decision Date: 17 June 1993
• Docket Number: No. B073747,B073747
• Citation: 16 Cal.App.4th 836,20 Cal.Rptr.2d 275
• Court: California Court of Appeals Court of Appeals
• Parties: , 62 USLW 2007 Deborah E. HECHT, Petitioner, v. SUPERIOR COURT of the State of California for the County of Los Angeles, Respondent; William Everett KANE, Jr., et al., Real Parties in Interest.

Page 275

20 Cal.Rptr.2d 275

16 Cal.App.4th 836, 62 USLW 2007

Deborah E. HECHT, Petitioner, v. SUPERIOR COURT of the State of California for the County of Los Angeles, Respondent;

William Everett KANE, Jr., et al., Real Parties in Interest.

No. B073747.

Court of Appeal, Second District, Division 7, California.

June 17, 1993.

Review Denied Sept. 2, 1993.

Marvin L. Rudnick, Michael J. Partos, Los Angeles, and J.R. Nerone, Reseda, for petitioner.

No appearance for respondent.

Sandra McMahan Irwin, Pasadena, for real parties in interest William Everett Kane, Jr. and Katharine E. Kane.

Bloom & Ruttenberg and Gary M. Ruttenberg, Santa Monica, for real party in interest Robert L. Greene, Adm'r CTA of the Estate of William E. Kane.

LILLIE, Presiding Justice.

Petitioner, the girlfriend of decedent William E. Kane, seeks a peremptory writ of mandate/prohibition to vacate a January 4, 1993 order directing the personal representative of decedent's estate to destroy all of the decedent's sperm in the custody and control of California Cryobank, Inc. The real parties in interest are the administrator of the decedent's estate, (Robert L. Greene) and the decedent's adult son (William E. Kane, Jr.) and adult daughter (Katharine E. Kane). We issued an order to show cause and order staying execution of the January 4, 1993 order.

This proceeding presents several matters of first impression involving the disposition of cryogenically-preserved sperm of a deceased. We conclude that the trial court's order constituted an abuse of discretion in the procedural posture of this case which compels us to set aside such order.

FACTUAL AND PROCEDURAL BACKGROUND

At the age of 48, William E. Kane took his own life on October 30, 1991, in a Las Vegas hotel. For about five years prior to his death, he had been living with petitioner, 38-year-old Deborah Hecht. Kane was survived by two college-aged children of his former wife whom he had divorced in 1976.

In October 1991, decedent deposited 15 vials of his sperm in an account at California Cryobank, Inc., a Los Angeles sperm bank (hereinafter sperm bank). On September 24, 1991, he signed a "Specimen Storage Agreement" with sperm bank which provided in pertinent part that "In the event of the death of the client [William E. Kane], the client instructs the Cryobank to: ... [p] Continue to store [the specimens] upon request of the executor of the estate [or] [r]elease the specimens to the executor of the estate." A provision captioned "Authorization to Release Specimens" states, "I, William Everett Kane, ... authorize the [sperm bank] to release my semen specimens (vials) to Deborah Ellen Hecht. I am also authorizing specimens to be released to recipient's physician Dr. Kathryn Moyer." ¹

On September 27, 1991, decedent executed a will which was filed with the Los Angeles County Superior Court and admitted to probate. The will named Hecht as executor of the estate, and provides, "I bequeath all right, title, and interest that I may have in any specimens of my sperm stored with any sperm bank or similar facility for storage to Deborah Ellen Hecht." A portion of the will entitled "Statement of Wishes" provided, "It being my intention that samples of my sperm will be stored at a sperm bank for the use of Deborah Ellen Hecht, should she so desire, it is my wish The will also bequeaths a home in Monterey County to Hecht and an adjoining seven-and-one-half-acre parcel of unimproved land to William E. Kane, Jr., and Katharine Kane, on condition that they deed and convey .4 acre of unimproved land adjacent to the home to Hecht. The residue of the estate was bequeathed to Hecht, the will stating, "I recognize that my children ... are financially secure and therefore leave them nothing other than the land included in this bequest, subject to the conditions as set forth above."

that, should [Hecht] become impregnated with my sperm, before or after my death, she disregard the wishes expressed in Paragraph 3 above [pertaining to disposition of decedent's "diplomas and framed mementoes,"] to the extent that she wishes to preserve any or all of my mementoes and diplomas and the like for our future child or children."

An October 21, 1991 letter signed by Kane and addressed to his children stated: "I address this to my children, because, although I have only two, Everett and Katy, it may be that Deborah will decide--as I hope she will--to have a child by me after my death. I've been assiduously generating frozen sperm samples for that eventuality. If she does, then this letter is for my posthumous offspring, as well, with the thought that I have loved you in my dreams, even though I never got to see you born. [p] If you are receiving this letter, it means that I am dead--whether by my own hand or that of another makes very little difference. I feel that my time has come; and I wanted to leave you with something more than a dead enigma that was your father. [p] ... I am inordinately proud of who I have been--what I made of me. I'm so proud of that that I would rather take my own life now than be ground into a mediocre existence by my enemies--who, because of my mistakes and bravado have gained the power to finish me."

After several pages of childhood memories and family history, the letter stated: "So why am I checking out now? Basically, betrayal, over and over again, has made me tired. I've picked up some heavyweight enemies along the way--ranging from the Kellys of the world, to crazies with guns, to insurance companies, to the lawyers that have sucked me dry.... I don't want to die as a tired, perhaps defeated and bitter old man. I'd rather end it like I have lived it--on my time, when and where I will, and while my life is still an object of self-sculpture--a personal creation with which I am still proud. In truth, death for me is not the opposite of life; it is a form of life's punctuation."

Kane committed suicide on October 30, 1991, in Las Vegas, Nevada. On November 18, 1991, Robert L. Greene was appointed special administrator of the estate of William Everett Kane. On December 3, 1991, William Kane, Jr., and Katharine Kane each filed separate will contests.

On December 3, 1991, in open court, counsel for the special administrator orally placed on the record a "tentative agreement" to resolve "all matters relating to the estate between the children and Miss Hecht and to provide a 'global' resolution" pertaining to two will contests filed by the children and "one or two petitions under Probate Code [section] 9860 seeking the termination of title in the estate to various assets." Pursuant to the agreement, Hecht had in her possession and was to keep as her sole and separate property the sum of $80,000, an automobile, and some items of household furniture; the children were entitled to keep some personal effects and furnishings located at decedent's rented property in Malibu and his Monterey County house, and were entitled to proceeds of an insurance policy. "The balance of all assets over which the decedent had dominion or control or ownership, whether in the possession of Miss Hecht, the children or any third party shall be subject to administration in the decedent's estate."

After payment of all specific bequests and debts and obligations, the parties agreed that "Sums in excess of $190,000 net available for distribution will be distributed 20 percent to Deborah Hecht, 40 percent to Katharine E. Kane and 40 percent to William Everett Kane, Jr." Further According to real parties, six months after the first settlement agreement of December 1991 (hereinafter First Settlement Agreement), Hecht's counsel attempted to claim the sperm from the sperm bank by letter; the sperm bank refused to release it to Hecht, who contacted the media and asserted claims to the sperm in that forum. Hecht alleges in the instant petition that real parties breached the First Settlement Agreement which is unenforceable and refiled their will contests in direct violation of the agreement. She also alleges that the First Settlement Agreement did not mention the decedent's sperm, which was not an "asset" of the estate and does not fall under the catch-all provision of the agreement because decedent gifted it to her before his death. Real parties William Kane, Jr., and Katharine Kane contended, and still contend, that the First Settlement Agreement is valid and binding.

"the parties will request that said last will and testament be admitted to probate subject to the terms of the formalized version of this stipulation." The foregoing stipulation was not to be binding until each of the parties and counsel discussed it and obtained approval; the reporter was also instructed to put signature lines at the bottom of the transcript for each party and his or her counsel. According to the copy of the transcript and signature page in our record, the stipulation was signed by William Kane, Jr., and Katharine Kane and her attorney. In court on December 6, 1991, Hecht stated that she agreed with the terms of the stipulation and her counsel indicated that Hecht had signed a copy of the reporter's transcript.

In October 1992, the administrator of decedent's estate filed under Probate Code sections 9837 and 9860 "Petition for Order Authorizing Compromise and Settlement of Action by Estate and Authorizing and Directing Transfer of Property from Estate," which alleged that real parties and Hecht had entered into a settlement agreement and release (herein Second Settlement Agreement); pursuant to the Second Settlement Agreement, the estate will assign to Hecht any interest the estate may have in decedent's sperm, and Hecht will agree to "defend, indemnify, and hold harmless the Estate of William Kane [and real parties, their heirs, successors, and assigns] from and against all claims, demands, and causes of action by or on behalf of any William Kane Unborn Child...." The Second Settlement Agreement also provided in part that ...