EState of Joseph CLEMENTI v. Objectors, G039223.

• Decision Date: 27 August 2008
• Docket Number: No. G039223.,G039223.
• Citation: 82 Cal.Rptr.3d 685,166 Cal.App.4th 375
• Court: California Court of Appeals Court of Appeals
• Parties: ESTATE OF Joseph CLEMENTI, Jr., Deceased. Salvatore Chimenti et al., Contestants and Appellants, v. Richard E. Weisz et al., Objectors and Respondents.

166 Cal.App.4th 375

82 Cal.Rptr.3d 685

ESTATE OF Joseph CLEMENTI, Jr., Deceased.Salvatore Chimenti et al., Contestants and Appellants,

v.Richard E. Weisz et al., Objectors and Respondents.

No. G039223.

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

Aug. 27, 2008.

COPYRIGHT MATERIAL OMITTED.

Langston Williams and Gerold G. Williams for Contestants and Appellants.

Glicker & Associates and Brian Glicker, Sherman Oaks, for Objector and Respondent Richard E. Weisz.

Edmund G. Brown, Jr., Attorney General, Belinda J. Johns, Assistant Attorney General, and James M. Cordi, Deputy Attorney General, for Objector and Respondent Attorney General of the State of California.

OPINION

FYBEL, J.

Introduction

The will of Joseph Clementi, Jr., was admitted to probate. He willed assets to his siblings, the drafter of his will, and to a charitable foundation or trust to be run by the will's drafter. Clementi's nephew and niece, Salvatore Chimenti and Adeline DiAmbrosio (appellants) filed a petition to revoke probate. The petition was denied, and this appeal followed. We affirm.

Probate Code section 21350 generally prohibits donative transfers to the drafters of wills and their relatives. (All further statutory references are to the Probate Code.) However, section 21351, subdivision (i) creates an exemption from section 21350 if “[t]he transfer is made by an instrument executed by a nonresident of California who was not a resident at the time the instrument was executed, and that was not signed within California.” (§ 21351, subd. (i).) Clementi was not a California resident when he signed his will in Pennsylvania, but was a California resident at the time of his death.

We hold section 21351, subdivision (i) does not require that the transferor be a nonresident of California at the time of death. Therefore, the exemption in section 21351, subdivision (i) applies in this case because Clementi's will was signed in Pennsylvania at a time when Clementi was not a resident of California.

Additionally, we conclude Clementi manifested a sufficient intent to create a charitable trust through his will, although his will does not identify a specific charity. His stated intent to “give the balance of my assets to a charitable foundation or trust” is sufficient.

Statement of Facts and Procedural History

Clementi died on February 13, 2001, while residing in Orange County, California. Clementi's will, dated March 4, 1999, was admitted to probate by the Orange County Superior Court on December 2, 2004.

At the time he executed his will, Clementi was living in Philadelphia, Pennsylvania. Richard E. Weisz was Clementi's accountant, and apparently his only friend. Weisz suggested to Clementi that he prepare a will, and further suggested that an attorney draft the will. Clementi asked Weisz to create the will instead, and Weisz agreed. Weisz wrote out Clementi's will by hand, at Clementi's request. Weisz read the will to Clementi, who signed it in the presence of two witnesses, who also signed the will. The will reads as follows:

“1. I give $250,000 to each of my brother and sister [ sic ].^{[ 1 ]} “2. I give $100,000 to my friend, accountant and benefactor, Richard E. Weisz.

“3. I give the balance of my assets to a charitable foundation or trust in my name to be run by Richard Weisz. If Richard Weisz is not alive when I die, then I appoint his son, Frank Weisz[,] to run my charitable foundation or trust.

“4. I appoint Richard Weisz to administer my estate. If he is not alive when I die, then I appoint his son Frank Weisz to administer my estate.”

Sometime in 2000, Clementi's brother Mitchell Clement moved Clementi to California. At the time of Clementi's death in 2001, his estate was worth in excess of $3 million.

In December 2005, appellants filed a petition for revocation of the probate of the will, for damages for elder abuse and negligence, and for rescission, restitution, and an award of attorney fees. ² A bench trial was conducted, and the probate court issued a statement of decision in February 2007, finding Clementi's probated will was valid, and denying the petition in its entirety. Judgment was entered, and appellants timely appealed.

Discussion

I. Standards of Review

Where, as here, the probate court issues a statement of decision, and the parties fail to file any objections, we will infer that the probate court made all necessary implied factual findings to support its judgment. ( In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133-1134, 275 Cal.Rptr. 797, 800 P.2d 1227.) We next inquire whether substantial evidence supports those findings. ( Fladeboe v. American Isuzu Motors Inc. (2007) 150 Cal.App.4th 42, 48, 58 Cal.Rptr.3d 225.)

To the extent the appeal involves interpretation of a statute, we review the matter de novo. ( Kavanaugh v. West Sonoma County Union High School Dist. (2003) 29 Cal.4th 911, 916, 129 Cal.Rptr.2d 811, 62 P.3d 54.) “In construing a statute, our fundamental task is to ascertain the Legislature's intent so as to effectuate the purpose of the statute. [Citation.] We begin with the language of the statute, giving the words their usual and ordinary meaning. [Citation.] The language must be construed ‘in the context of the statute as a whole and the overall statutory scheme, and we give “significance to every word, phrase, sentence, and part of an act in pursuance of the legislative purpose.” ’ [Citation.] In other words, ‘ “we do not construe statutes in isolation, but rather read every statute ‘with reference to the entire scheme of law of which it is part so that the whole may be harmonized and retain effectiveness.’ [Citation.]” ' [Citation.] If the statutory terms are ambiguous, we may examine extrinsic sources, including the ostensible objects to be achieved and the legislative history. [Citation.] In such circumstances, we choose the construction that comports most closely with the Legislature's apparent intent, endeavoring to promote rather than defeat the statute's general purpose, and avoiding a construction that would lead to absurd consequences. [Citation.]” ( Smith v. Superior Court (2006) 39 Cal.4th 77, 83, 45 Cal.Rptr.3d 394, 137 P.3d 218.)

II. The probate court correctly determined the exception to section 21350 contained in section 21351, subdivision (i) applies in this case.

A. Analysis of the statute's language

Section 21350, subdivision (a) provides, in relevant part, as follows: “Except as provided in Section 21351, no provision, or provisions, of any instrument shall be valid to make any donative transfer to any of the following: [¶] (1) The person who drafted the instrument. [¶] (2) A person who is related by blood or marriage to, is a domestic partner of, is a cohabitant with, or is an employee of, the person who drafted the instrument. [¶] ... [¶] (4) Any person who has a fiduciary relationship with the transferor, including, but not limited to, a conservator or trustee, who transcribes the instrument or causes it to be transcribed. [¶] (5) A person who is related by blood or marriage to, is a domestic partner of, is a cohabitant with, or is an employee of a person who is described in paragraph (4).” Appellants contend the bequest of $100,000 to Weisz and the remuneration that would result to Weisz or his son from the position of running the charitable foundation or trust are donative transfers prohibited by section 21350.

Section 21351, subdivision (i) creates an exemption from section 21350 if “[t]he transfer is made by an instrument executed by a nonresident of California who was not a resident at the time the instrument was executed, and that was not signed within California.” (§ 21351, subd. (i).) Appellants argue section 21351, subdivision (i) does not apply if the decedent was a resident of California at the time of death. They argue that the use of two separate references in section 21351, subdivision (i) to nonresidence means that residence must be evaluated at two separate times-at the time the instrument is executed and at the time of death. This interpretation is bolstered by the language of section 21351, subdivision (e)(3), which permits the probate court to determine whether an otherwise prohibited transfer was not the product of fraud, menace, duress, or undue influence if the transfer was included in “[a]ny instrument executed by a resident of California who was not a resident at the time the instrument was executed.” As our Supreme Court has noted, “[w]here different words or phrases are used in the same connection in different parts of a statute, it is presumed the Legislature intended a different meaning. [Citation.]” ( Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1117, 81 Cal.Rptr.2d 471, 969 P.2d 564.) If both references to nonresidence refer to nonresidence at the time the instrument is signed, appellants argue, then one of them is surplusage, and we must avoid interpretations of statutes that render their terms meaningless. ( People v. Hudson (2006) 38 Cal.4th 1002, 1010, 44 Cal.Rptr.3d 632, 136 P.3d 168.)

The Attorney General argues that if the Legislature had intended that section 21351, subdivision (i) applies only if the decedent was not a California resident at the time of death, it would have said so expressly in the statute. This interpretation finds support in Witkin's treatise on California law: “The prohibition [on transfers under section 21350] does not apply to a transfer made in an instrument executed out of state by a person who was not a California resident at the time of execution. [Citation.]” (14 Witkin, Summary of Cal. Law (10th ed. 2005) Wills and Probate, § 304, p. 391.) Witkin cites no authority supporting this statement, except the statute itself.

The Attorney General also argues that because sections 21350 and 21351 apply to all donative transfers ( Rice v. Clark (2002) 28 Cal.4th 89, 98, 120 Cal.Rptr.2d 522, 47 P.3d 300) and some donative transfers such as inter vivos trusts and grant deeds...