Estate of Kime

Citation144 Cal.App.3d 246,193 Cal.Rptr. 718
CourtCalifornia Court of Appeals Court of Appeals
Decision Date22 June 1983
PartiesESTATE OF Concha Cristina KIME, Deceased. Albert L. KIME, Appellant, v. Randolph J. BARNARD, Betty J. Hyde, Respondents. Civ. 65192.

Gregg Vorwerck, Richard E. Smith, Inc., Long Beach, for respondent Betty J. Hyde.

No appearance for respondent Randolph J. Barnard.

SCHAUER, Presiding Justice.

Albert L. Kime, decedent's husband, appeals from a judgment (1) denying his petition for revocation of probate of purported lost will and (2) determining heirship. 1


Albert Kime (Kime) and Concha Kime (Decedent) were married in 1963. In 1977 Kime filed a petition for dissolution of marriage. On August 18, 1978, Decedent executed a witnessed Last Will and Testament (the Will). On a Wolcott form, the Will purported to appoint Decedent's close personal friend, Betty Jean Hyde (Hyde) as executrix, but the document failed to be explicit in naming a beneficiary or in reciting dispositive provisions; it made no mention of Kime or of Decedent's only issue, Randolph Barnard (Barnard). The Will, reproduced as Appendix A hereto, states in relevant part (with underlined words written in by Decedent):

"I, Concha Cristina Kime, a resident of 3135 Bellflower Blvd., Long Beach, California declare this to be my last Will and revoke all other Wills previously made by me:


My home (residence) and all effects therein & automobile, 1973 Caprice auto License 927.HHT.

[144 Cal.App.3d 250] __________: I appoint Betty J. Hyde ___as Executris [sic] of this Will & last Testament"

Sometime between July 2 and August 2, 1979, Kime's attorney, Carl M. Bergkvist (Bergkvist), prepared a "Stipulation re Support and Division of Community Property" On October 17, 1979, Bergkvist wrote to Wilton Roddy (Roddy), Decedent's attorney, enclosing the proposed interlocutory judgment, the executed Quitclaim Deed, and a "Note Secured by Deed of Trust" for $8,074.92, the letter authorizing Roddy to record the deed "upon Mrs. Kime executing the Note and Deed of Trust and returning same to me." The purpose of the note was to equalize the division of community assets pursuant to the judgment. Bergkvist also requested that, if the judgment was correct, Roddy sign and return the original to Bergkvist along with the executed note.

                (the Stipulation) providing, inter alia, that Decedent was to receive the family residence as her separate property and Kime was to receive certain securities as his separate property.  On August 2, 1979, during a recess in the course of a judicial hearing on the Stipulation, the parties and their respective attorneys reviewed, and then signed, the Stipulation.  Shortly prior to the execution of the Stipulation, Decedent signed over to Kime the securities.  Also on that date Kime executed, and Bergkvist notarized, a quitclaim deed to Decedent conveying the family residence (the Quitclaim Deed).  The Stipulation was presented to the dissolution court when it reconvened after the recess.  The court then heard further testimony concerning several unresolved property division issues, and stated:  "I assume that there will at long last be prepared a decree spelling out the details of the interlocutory being granted and the specifics of the stipulation."   Bergkvist undertook to prepare the interlocutory judgment of dissolution incorporating the Stipulation

Less than two months thereafter, Decedent was killed in an automobile accident, on November 30, 1979, without having executed the note. The original of the Will was never found. On December 13, 1979, Roddy filed the interlocutory judgment. On or about February 8, 1980, the parties through their attorneys stipulated to have the interlocutory decree set aside and cancelled.

Following an uncontested hearing on Hyde's Petition for Probate of Lost Will, the Will was admitted to probate. On February 8, 1980, Kime filed a "Petition for Revocation of Probate of Purported Lost Will" (the "Petition for Revocation") alleging, inter alia, that the document did not qualify as a will as it failed to recite dispositive provisions. On May 7, 1980, Barnard filed a "Petition for Determination of Entitlement to Estate Distribution" under Probate Code section 1080 (the "Entitlement Petition"), claiming, inter alia, that Barnard was a pretermitted heir, and that the residence subject to the Will was separate in nature in accordance with the Stipulation. Kime's and Barnard's petitions were heard on November 12 and 13, 1980, respectively. At the hearing on the Entitlement Petition, the parties first stipulated that Barnard was a pretermitted heir within the meaning of Probate Code section 90. Over Kime's objection, the court allowed Bergkvist to testify as to matters concerning the transmutation of community property to separate property in accordance with the Stipulation. The court held that Barnard was a pretermitted heir, and that the Stipulation and the Quitclaim Deed had effectively converted the residence from community to separate property. The hearing on the Petition for Revocation concerned the issue of the interpretation of the Will in view of the absence of explicit dispositive provisions. Several witnesses testified, over Kime's objection, as to Decedent's oral statements indicating her intent to will to Hyde the residence, the effects therein, and the automobile. The court found that Hyde took under the Will (subject to Barnard's rights as pretermitted heir), and denied the Petition for Revocation. Kime's motion for new trial and stay of execution was denied, and Kime appeals.

We affirm the denial of the Petition for Revocation. But we conclude that appellant is correct in asserting a violation of the attorney-client privilege and, hence, we reverse and remand as to the trial court's determination on the Entitlement Petition and estate distribution.

Factual Background

At the hearing on the Entitlement Petition, counsel for Barnard called Bergkvist as his first witness. Bergkvist stated at the outset of his testimony that all matters between Kime and himself fell within the attorney-client privilege and, unless waived, he was not able to discuss them in court. The following dialogue ensued:

"MR. CHAPMAN [attorney for Barnard]: Your Honor, our position is that the attorney-client privilege has been waived by Mr. Kime's attack upon a property settlement agreement entered into in this very courthouse.

"MR. VORWERCK [attorney for Hyde]: In addition, Your Honor, the exception is waived pursuant to section 961 of the Evidence Code where the validity of the writings affected a property interest is an issue, and I believe it is in this case.

"MR. MIKKELSON [attorney for Kime]: Your Honor, I would not be prepared to accept a stipulation to a waiver of attorney-client privilege.

"I'm knowledgeable of those matters sought by counsel here, but just on general principles, I could not waive attorney-client privilege.

"THE COURT: It would appear that this is very similar to the doctor-patient privilege, which is waived when an individual brings a lawsuit resulting for [sic] personal injuries and the doctor is called to give depositions and testimony.

"I don't think Mr. Kime can hide behind that privilege and still say that the property is community. I think there was a waiver.

"The witness will be instructed to proceed.

"MR. MIKKELSON: We request that our objection be noted.

"THE COURT: Automatic exception to all rulings of the court."

Bergkvist proceeded to testify. His examination included, inter alia, the exchanges recited in the margin. 2

Issues on Appeal As to Attorney-Client Privilege

The principal issue presented is whether the testimony set forth in footnote 2, or any part of it, was protected by the attorney-client privilege and, if so, whether its admission was reversible error. The following issues must be considered in light of the attorney-client privilege as it exists in California:

1. Did the questions put to Bergkvist, or any of them, invade the attorney-client privilege?

2. Did the testimony fall under any statutory exception to the privilege?

3. Was the privilege waived by Kime?

4. Was admission of the testimony harmless error?

We conclude that the answer to the first question is "yes" and the answer to questions 2, 3 and 4 is "no," and hence we reverse the judgment.

The Attorney-Client Privilege in California

The attorney-client privilege has been embedded in Anglo-Saxon jurisprudence for 400 years. (McCormick, Evidence (2d ed. 1972) § 87, pp. 175-179; Prichard v. United States (6th Cir.1950) 181 F.2d 326, 328, affd. (1950) 339 U.S. 974, 70 S.Ct. 1029, 94 L.Ed. 1380; Baird v. Koerner (9th Cir.1960) 279 F.2d 623, 629; Willis v. Superior Court (1980) 112 Cal.App.3d 277, 290, 169 Cal.Rptr. 301.) The privilege authorizes a client to refuse to disclose, and to prevent others from disclosing, confidential communications between attorney and client, including legal opinions formed, and advice The California Supreme Court has stated that the attorney-client privilege "is given on grounds of public policy in the belief that the benefits derived therefrom justify the risk that unjust decisions may sometimes result from the suppression of relevant evidence." (City & County of San Francisco v. Superior Court (1951) 37 Cal.2d 227, 235, 231 P.2d 26; accord People v. Canfield (1974) 12 Cal.3d 699, 705, 117 Cal.Rptr. 81, 527 P.2d 633.) The public policy fostered by the privilege is to insure "the right of every person to freely and fully confer and confide in one having knowledge of the law, and skilled in its practice, in order that the former may have adequate advice and a proper defense." (Baird v. Koerner, supra, 279 F.2d at p. 629; accord Grand Lake Drive In v. Superior Court (1960) 179 Cal.App.2d 122,...

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