Estate of Black

• Decision Date: 28 September 1984
• Court: California Court of Appeals Court of Appeals
• Parties: ESTATE OF Leo BLACK, Deceased. Donna GRAHAM, Petitioner and Appellant, v. Donna F. ROBERTS, as Executrix, etc., et al., Objectors and Appellants. Civ. F3304.

Page 663

206 Cal.Rptr. 663

160 Cal.App.3d 582

ESTATE OF Leo BLACK, Deceased.

Donna GRAHAM, Petitioner and Appellant, v. Donna F. ROBERTS, as Executrix, etc., et al., Objectors and Appellants.

Civ. F3304.

Court of Appeal, Fifth District, California.

Sept. 28, 1984.

Hearing Denied Nov. 28, 1984.

[160 Cal.App.3d 584] J. Richard Thomas, Bakersfield, for petitioner and appellant.

Darling, Maclin & Day, Curtis Darling, Bakersfield, for objectors and appellants.

OPINION

PAULINE DAVIS HANSON, Associate Justice.

In this probate proceeding, we hold that petitioner, a beneficiary under the will and alleged unmarried partner of decedent, may seek a determination of claimed property rights arising during the couple's lengthy relationship without forfeiting, by operation of the will's no-contest clause, the specific gift of their residence. We reach this conclusion based upon our independent interpretation of the language of the will in light of uncontradicted facts in the pleadings; the merits of petitioner's claims to a partnership interest in property in the estate are not before us.

Both sides appeal from an order of the probate court under Probate Code sections 588 and 1080 ¹ ruling upon the petition of Donna Graham "FOR DETERMINATION OF INTEREST UNDER THE WILL AND FOR INTERPRETATION OF THE WILL" of decedent Leo Black and the response of the coexecutors seeking instructions. Graham, a beneficiary and the alleged unmarried cohabitant of the deceased, sought a ruling that the filing of a proposed section 851.5 petition to determine an interest in property in the estate under theories of express or implied domestic partnership (Marvin v. Marvin (1976) 18 Cal.3d 660, 134 Cal.Rptr. 815, 557 P.2d 106) ² would not violate the in terrorem or no-contest clause of the will. A copy of the proposed pleading was attached to the section 1080 petition.

Donna F. Roberts and Thomas O. Gilbert, coexecutors of the estate, filed opposition contending the filing of the section 1080 petition itself triggered the in terrorem clause.

Following a hearing, the court ruled by minute order that "the filing of the instant petition did not violate the in terrorem clause in the will; however, the subsequent filing of the proposed petition or an independent action under a Marvin theory would do so." A formal order stating these rulings was entered.

Graham appealed from the portion of the court's order determining that the filing of the proposed petition or an independent action would violate the in terrorem clause. ³ The executors filed a "NOTICE OF CROSS-APPEAL" attacking the portion of the order holding the filing of the section 1080 petition did not violate the no-contest clause.

FACTS

The petition was tried upon the documents and arguments of counsel and presents issues of law arising from basically uncontested facts. No question concerning the merits of the Marvin claim was litigated.

Leo Black, a widower with five children, lived with Donna Graham, to whom he was not married, from 1965 until his death on May 19, 1983, or nearly 18 years. Also living in the household during this time was Graham's adopted daughter, born in 1960. The proposed petition under section 851.5 alleges Black agreed to

"support petitioner and her minor child and provide a home in which they all would reside, and ... petitioner agreed to perform all the necessary functions of a typical housewife, including entertaining decedent's business acquaintances.

"...

"[P]etitioner in fact provided a home and family for decedent until his death, ..."

Sixteen days before his death, Black executed a will which gave to Graham "if she shall survive me," a mobile home (according to the executors, the residence of Black and Graham), and placed $50,000 in trust to provide for expenses for the home during the life of Graham "[s]o long as [she] is ... using said mobile home, or a replacement thereof, as her primary residence, ..." The will further provided that the trust principal and income could be utilized, in the discretion of the trustees (executors Roberts and Gilbert), to provide for other needs of Graham "after taking into consideration any income or other means of health, education, support or maintenance available to her ...." ⁴

The residue of the estate, which we are informed is valued at more than $900,000 including the remainder interest in the $50,000 trust, was left to Black's five children. Paragraph Seventh of the will provides as follows:

"If any beneficiary under this will in any manner, directly or indirectly, contests or attacks this will or any of its provisions, any share or interest in my estate given to that contesting beneficiary under this will is revoked and shall be disposed of in the same manner provided herein as if that contesting beneficiary had predeceased me."

Decedent's will was admitted to probate and letters testamentary issued on June 27, 1983. On August 15, 1983, Graham filed the instant petition under section 1080; attached as exhibit "A" is a proposed pleading under section 851.5, claiming an undivided 50 percent interest in all the property held by Black at his death on the theory of a "Marvin -type domestic partnership implied in law, ..."

DISCUSSION

These appeals present two interrelated questions: (1) Did the filing of Graham's proposed section 1080 petition violate the no-contest clause of the will? (2) Would the filing of Graham's proposed section 851.5 petition claiming one-half the property possessed by decedent at his death on a theory of implied domestic partnership violate the no-contest clause? We answer both questions in the negative, affirming in part, and reversing in part the order of the probate court. ⁵

The obvious purpose of no-contest ("in terrorem") clauses is to discourage will contests by imposing a penalty of forfeiture against beneficiaries who challenge the will. No-contest clauses are valid in California and have been said to be favored by the public policies of discouraging litigation and giving effect to the purposes expressed by the testator. (Estate of Hite (1909) 155 Cal. 436, 439-441, 101 P. 443.) However, "it is also the rule, and a salutory one, that such provision--being by way of forfeiture and condition subsequent--is to be strictly construed and not extended beyond what was plainly the testator's intent." (Estate of Bergland (1919) 180 Cal. 629, 633, 182 P. 277.)

"The policy against forfeitures is so strong that our courts, following the universal rule in this country, insist upon a clear and unequivocal attack upon the will before invoking the penalty contained in the in terrorem clause; ..." (Estate of Miller (1963) 212 Cal.App.2d 284, 298, 27 Cal.Rptr. 909.)

California courts have accommodated these competing policies by determining on a case-by-case basis the crucial question of what constitutes a contest. (See Selvin, Comment: Terror in Probate (1964) 16 Stan.L.Rev. 355, 356-359, 362; Tucker, If a Will is Contested ... (1975) 50 State Bar.J. 382, 407.)

"Whether there has been a contest within the meaning of the language used in a particular no-contest clause is determined according to the circumstances of the particular case. [Citations.] Thus, the answer cannot be sought in a vacuum, but must be gleaned from a consideration of the purpose that the testatrix sought to attain by the provisions of her will." (Estate of Kazian (1976) 59 Cal.App.3d 797, 802, 130 Cal.Rptr. 908; Estate of Hite, supra, 155 Cal. 436, 441-444, 101 P. 443.)

In Estate of Hite, supra, 155 Cal. at pp. 438-439, 101 P. 443, the decedent had executed various codicils altering the amount of legacies given to various individuals in the original will. Etta Gross, one of the affected legatees, filed a "Contest of Codicil" opposing probate of the particular codicil reducing her inheritance on grounds of nonexecution, want of mental capacity and undue influence. The contest was settled prior to hearing but the Supreme Court found Gross had forfeited her rights under the will even though she abandoned the legal proceedings after the favorable settlement. The court explained:

"It does not follow herefrom that the mere filing of a paper contest, which has been abandoned without action and has not been employed to thwart the testator's expressed wishes, need be judicially declared a contest. But wherever an opponent uses the appropriate machinery of the law to the thwarting of the testator's expressed wishes, whether he succeed or fail, his action is a contest." (Id., at p. 444, 101 P. 443.)

The type of attack involved in Hite is clearly a "contest" within any provision forbidding "contests," because the grounds there alleged are expressly included among the grounds for opposing or revoking probate under the Probate Code chapter entitled "Contests of Wills" ( §§ 370-385). (See Estate of Basore (1971) 19 Cal.App.3d 623, 630, 96 Cal.Rptr. 874.) In contrast, other types of claims and proceedings raising questions not "substantially affecting the validity of the will" ( § 371) have been held not to constitute contests under even very broad in terrorem clauses. (See Estate of Dow (1957) 149 Cal.App.2d 47, 51, 53-57, 308 P.2d 475, and cases discussed therein; Estate of Schreck (1975) 47 Cal.App.3d 693, 695, fn. 2., 697-698, 121 Cal.Rptr. 218; Estate of Basore, supra, 19 Cal.App.3d 623, 629-631, 96 Cal.Rptr. 874.)

The executors contend, contrary to the determination of the trial court, that Graham's action in filing the section 1080 petition itself triggered the no-contest clause of the will and should result in forfeiture of the bequests to Graham. We disagree. Numerous cases hold that neither a petition under section 1080 to determine heirship nor a petition seeking construction or interpretation of a will is a "contest," although such proceedings might result in invalidation of certain of the will's provisions. (Estate of Basore, supra, 19 Cal.App.3d at pp. 639-631, 96 Cal.Rptr. 874; Estate of Zappettini (1963) 223...