Estate of Duncan

• Decision Date: 27 October 1969
• Citation: 1 Cal.App.3d 212,81 Cal.Rptr. 568
• Court: California Court of Appeals Court of Appeals
• Parties: In the Matter of the ESTATE of Robert A. DUNCAN, Deceased. Patricia GENIAC, Petitioner and Appellant, v. Ralph KAPLAN, Petitioner and Respondent. Civ. 34576.

Page 568

81 Cal.Rptr. 568

1 Cal.App.3d 212

In the Matter of the ESTATE of Robert A. DUNCAN, Deceased.

Patricia GENIAC, Petitioner and Appellant, v. Ralph KAPLAN, Petitioner and Respondent.

Civ. 34576.

Court of Appeal, Second District, Division 3, California.

Oct. 27, 1969.

Darling, Mack, Hall & Call, Los Angeles, for petitioner and appellant.

Eric Rafter, Hermosa Beach, for petitioner and respondent.

SCHWEITZER, Associate Justice.

Appellant, daughter of decedent, filed a petition for letters of administration. Respondent, a stranger, named executor in a document claimed to be an holographic will, filed a petition for probate of the purported will and for letters testamentary. Both petitions came on for hearing on January 20, 1969. No evidence was offered, appellant arguing that the purported will was invalid on its face since it was not entirely written, dated and signed by the decedent. (Prob.Code, § 53.) Appellant relied on Estate of Bower, 11 Cal.2d 180, 78 P.2d 1012, respondent on Estate of Baker, 59 Cal.2d 680, 31 Cal.Rptr. 33, 381 P.2d 913, both dealing with the incorporation of printed material into holographic wills. Following argument the petitions were taken under submission. On January 21, 1969 the court by minute orders denied the petition for letters of administration, and apparently for the purpose of permitting appellant to file a contest before probate, continued the petition for probate of will and for letters testamentary to a future date.

Thereafter appellant filed a contest before probate alleging (1) that the will was not executed as required by law, (2) that the testator was not of sound and disposing mind, and (3) that the testator acted under fraud, duress and undue influence of named persons. The contest before probate and the petition for probate of will and for letters testamentary are still pending.

Appellant appeals from the minute order denying her petition for letters of administration, contending (1) that the holographic will was invalid on its face in that it incorporated printed matter therein, and (2) that as a result, the petition for probate thereof should have been denied and the petition for letters of administration should have been granted.

The minute orders of January 21, 1969 do not set forth the reasons for the court's action. No findings of fact or formal judgment were signed. Although formerly findings of fact were required in contested probate proceedings unless waived (Estate of Hewitt, 160 Cal.App.2d 584, 586, 325 P.2d 113), section 632, Code of Civil Procedure, applicable to probate proceedings by virtue of section 1230, Probate Code, no longer requires findings of fact unless requested. We are therefore confronted with a minute order denying a petition without knowing the reason for the denial. Appellant asks us to assume that her petition for letters of administration was denied because the trial court concluded the purported will was valid. Although the transcript of argument, there being no testimony or evidence, appears to support this conclusion, in the absence of evidence or findings of fact, we will not speculate as to the reason for the court's action. There might have been any of several other reasons why the petition for letters of administration was denied and the petition for probate of will was continued.

No evidence was introduced at the hearing on January 20, 1969. Each petition was verified and an affidavit of witness in proof of the purported holographic will was on file. Verified petitions and affidavits may be considered as evidence only in uncontested probate proceedings. (Prob.Code, §§ 329 and 1233.) This was a contested hearing. In the absence of a stipulation, each allegation of the verified petitions and the facts in the affidavit filed in support of the will had to be established by competent evidence. If the court denied the petition for letters of administration because of its opinion that the holographic will was...