Estate of Lensch

• Decision Date: 31 August 2009
• Docket Number: No. A123296.,A123296.
• Court: California Court of Appeals Court of Appeals
• Parties: Estate of GLADYS MILDRED LENSCH, Deceased. JASON LENSCH et al., Plaintiffs and Appellants, v. DARIN WRIGHT, as Executor, etc., Defendant and Respondent.

177 Cal.App.4th 667

99 Cal. Rptr. 3d 246

Estate of GLADYS MILDRED LENSCH, Deceased.

JASON LENSCH et al., Plaintiffs and Appellants, v. DARIN WRIGHT, as Executor, etc., Defendant and Respondent.

No. A123296.

Court of Appeals of California, First District, Division Two.

August 31, 2009.

Law Offices of Margaret M. Hand and Margaret M. Hand for Plaintiffs and Appellants.

Bien & Summers, Elliot L. Bien, Catherine S. Meulemans; Wilkins & Johnson, Alfred S. Wilkins and Elizabeth W. Johnson for Defendant and Respondent.

OPINION

HAERLE, Acting P. J.

I. INTRODUCTION

Appellants Jason Lensch and Ean Lensch (appellants) appeal from the probate court's order denying their petition to determine survival and to determine persons entitled to distribution of the estate of their grandmother, Gladys Mildred Lensch, under Probate Code sections 220, 21109, and 21110.¹ They argue that the trial court erred in denying their requests for an evidentiary hearing as well as denying their petition. We agree and conclude that the trial court should have held an evidentiary hearing. Accordingly, we reverse the court's order, and remand this matter for an evidentiary hearing.

II. FACTUAL AND PROCEDURAL BACKGROUND

On March 12, 2008, at 2:30 a.m. Gladys Lensch died in a San Mateo County nursing home. She was 98 years old. She left the following three-sentence holographic will: "I Gladys Lensch do hereby declare, being of sound mind, that my estate be equally divided between my daughter Claudia and my son Jay. [¶] Claudia being married has 2 daughters, and my son by a previous marriage has 2 sons. They will provide for the well being of my grandchildren in the event of my death or serious incapacity due to lengthy illness. [¶] God Bless the Family. [¶] Gladys Clausen Lensch May 10, 1993."

Eleven hours after Gladys died, Jay, Gladys's son, was found dead in his home in Trinity County. He had shot himself with a 12-gauge shotgun. The time of death on Jay's death certificate was recorded as the time his body was found: 1:15 p.m. on March 12, 2008. Jay's body was cremated without an autopsy and his remains were buried five days later.

In a 10-page handwritten will, with a four-page addendum, Jay made small cash gifts to friends, and left another friend an undeveloped parcel of land. The residue of his estate was left in equal shares to the Unitarian Universalist Service Committee and Direct Relief International. He left nothing in his will to his two sons, appellants Jason and Ean Lensch.

On June 25, 2008, Jason and Ean Lensch filed a "Petition to Determine Survival and to Determine Persons Entitled to Distribution." This petition was verified by petitioners' attorney because petitioners reside "out of this county and state."

The petition asked the court to find that "it cannot be determined by clear and convincing evidence who died first, Gladys Mildred Lensch or her son, Petitioner's father, Jay Alfred Lensch. Because it cannot be determined who died first, Jay Lensch should not take under Gladys Lensch's will and his issue, Petitioners, should take in his place."

The petition stated that "Shortly after noon [on the same day Gladys Lensch died] the body of her son, Jay Lensch was found. Jay Lensch died in his Trinity County home of a self-inflicted gunshot wound. Petitioners and their attorney spoke to the Trinity County Deputy Coroner who investigated Jay Lensch's death and the Deputy Coroner said that he could not determine the precise time of Jay Lensch's death. To Ean Lensch, the Deputy Coroner said that Jay Lensch had been dead at least 24 hours before his body was found and that death might have occurred two or more days earlier. To Petitioner's attorney, the Deputy Coroner said that Jay Lensch had last spoken to another person two days before his body was discovered and that death could have occurred any time between that conversation and the time of discovery. On the death certificate, the Deputy Coroner used the time of discovery as the time of death, as is customary in cases like this. The Deputy Coroner is certain that Jay died earlier than the time stated on the death certificate, 1:15 p.m., but explained to Petitioner's counsel that there is no way to tell what was the actual time of death." Petitioners asked the court to find that "it cannot be determined by clear and convincing evidence who died first, Gladys Clausen Lensch or Jay Alfred Lensch," and that the court deem Gladys to have survived Jay for the purpose of the transfers created by Gladys's will and that the court rule that the transfer made to Jay in Gladys's will fails.

On July 25, 2008, Jay's executor, respondent Darin Wright, filed an opposition to Jason and Ean's petition to determine survival. He argued that Jason and Ean had the burden of proving that Jay did not survive Gladys. He also argued that survival was not required by the terms of Gladys's will. Relying on the death certificate of both decedents, respondent argued that because death certificates are proof of time of death, and claimants' petition was based on "inadmissible opinions, speculation, and hearsay," the only evidence of time of death was the death certificate.

At a brief hearing on July 30, 2008, the court noted that its tentative ruling was that "there is no requirement for survival in the testamentary document." Petitioners immediately requested an evidentiary hearing. Counsel argued that Jay was required to survive Gladys in order to take under her will. The court rejected this argument and also ruled, in the alternative, that even if there was a survival requirement "the only evidence before the court being the death certificates demonstrate that Mr. — not Mr. Lensch — it is Mr. Lensch did survive his mother." Counsel pointed to "sworn testimony of my client who spoke to the coroner who declared that the time of death of Jay Lensch could not be determined." The court ruled that this statement was hearsay. At two other points in the hearing, appellants repeated their request for an evidentiary hearing.

The court denied the petition to determine survival. The court held that "the evidence offered shows that decedent's will did not require survival, but nevertheless, that Jay Lensch survived decedent Gladys Mildred Lensch, and that no further evidentiary hearing is required."

This timely appeal followed.

III. DISCUSSION

A. Survivorship

(1) Jason and Ean contend the trial court erred in denying their petition on the basis that Gladys's will did not require that Jay survive her in order to take under her will. We exercise de novo review in interpreting the terms of Gladys's will (Estate of Edwards (1988) 203 Cal.App.3d 1366, 1371 ) and conclude that, although the trial court was correct in finding that Gladys's will contains no survivorship requirement, it erred in denying appellants' petition on this basis, apparently because it did not understand the legal consequences of the lack of a survivorship requirement in Gladys's will.

Gladys's will does not express any intent with regard to survivorship. Nor does it contain any provision for an alternate disposition in the event Jay predeceased her. In this situation, we look to section 21109 and the antilapse statute, section 21110, for guidance. Section 21109, subdivision (a), provides that "A transferee who fails to survive the transferor of an at-death transfer or until any future time required by the instrument does not take under the instrument." Section 21110, subdivision (a), provides that "Subject to subdivision (b), if a transferee is dead when the instrument is executed, or fails or is treated as failing to survive the transferor or until a future time required by the instrument, the issue of the deceased transferee take in the transferee's place in the manner provided in Section 240." Subdivision (b) provides, however, that "[t]he issue of a deceased transferee do not take in the transferee's place if the instrument expresses a contrary intention or a substitute disposition. A requirement that the initial transferee survive the transferor or survive for a specified period of time after the death of the transferor constitutes a contrary intention. A requirement that the initial transferee survive until a future time that is related to the probate of the transferor's will or administration of the estate of the transferor constitutes a contrary intention."

(2) Therefore, in the absence of any requirement of survivorship, "a transfer that is to occur on the transferor's death lapses if the transferee dies first." (Burkett v. Capovilla (2003) 112 Cal.App.4th 1444, 1449 .) As the court explained in Estate of Mooney (2008) 169 Cal.App.4th 654, 657 , "[u]nder ... the antilapse statute, if a bequest is made to kindred, and is not conditioned on survivorship and is not subject to an alternate disposition, and the beneficiary predeceases the transferor, the bequest passes to the predeceased beneficiary's issue."

Here, as the probate court found, Gladys's bequest was not conditioned on Jay's survival. Nor did she make an alternate disposition. Therefore, under sections 21109 and 21110, if Jay died before Gladys, then Gladys's bequest to Jay fails under section 21109 and passes to Jay's children, appellants, under section 21110. Put simply, the court's finding that Gladys's will contained no survival requirement was the beginning of the story, not the end.

Respondent, who seems to understand at this point in the proceedings the significance of the fact that Gladys's will contained neither a survival requirement nor an alternate disposition, argues that Jay's will, in which Jay complains about his sons' conduct toward him, constitutes extrinsic evidence from which the probate court "could reasonably infer ... that Gladys knew and disapproved of [Jason and Ean]'s conduct, and for that reason intended in her will to give Jay complete discretion over his bequest whether he survived her or not." In other words, respondent contends...