Estate of Macleod

• Decision Date: 23 December 1988
• Docket Number: No. D006798,D006798
• Court: California Court of Appeals Court of Appeals
• Parties: In re the ESTATE OF Margaret Horwitz MacLEOD, Deceased. Dorothy DAVIS et al., Petitioners and Respondents. v. David Albert HORWITZ, Contestant and Appellant,

Page 156

254 Cal.Rptr. 156

206 Cal.App.3d 1235

In re the ESTATE OF Margaret Horwitz MacLEOD, Deceased.

Dorothy DAVIS et al., Petitioners and Respondents. v. David Albert HORWITZ, Contestant and Appellant,

No. D006798.

Court of Appeal, Fourth District, Division 1, California.

Dec. 23, 1988.

Raymond G. Kolts, Lester, Pitzer & Davis, Charles P. Lester, Pasadena, Morris, Polich & Purdy and Robert S. Wolfe, Los Angeles, for appellant.

Wagner & Scuderi and Jerome M. Wagner, Sherman Oaks, for respondents.

BENKE, Associate Justice.

This is an appeal from an order submitting to probate a holographic instrument found by the trial court to be the will of Margaret Horwitz MacLeod (Margaret). (See Appendix A for a photocopy of the will attached to this opinion.) The will was contested by Margaret's stepson David Horwitz (David) on the basis (1) it was not signed with the intent to authenticate the document as a will, (2) it was executed without testamentary intent and (3) it was not dated as required by the law applicable to the document. The trial court rejected these claims and admitted the will to probate.

I FACTS

Margaret was married to the senior David Horwitz (Horwitz) in 1956. Margaret had no children; Horwitz had one son, David. Their marriage produced no offspring. Horwitz died in 1959, leaving two-thirds of his estate to Margaret and one-third to David. Margaret did not remarry. She purchased a small farm in New Brunswick Canada and moved to the farm in the late 1960's. In 1976 Margaret suffered a stroke and was placed by relatives in a convalescent home in Carlsbad, California. Conservatorship proceedings were instituted in both Canada and California. Margaret's Canadian property was sold at a later date and the funds from the sale were deposited into Margaret's California conservatorship. Margaret died in the convalescent home on January 31, 1984.

A petition was filed for letters of administration. Later an amended petition was filed, seeking in the alternative either letters of administration or letters testamentary. Attached to the petition was a holographic document in Margaret's handwriting.

The petition took no position on whether the document was a will. Since the possibility existed it was, however, it was included in the petition for the review of interested parties.

After Margaret's stroke, the document was found in her bedside table at the New Brunswick farm by the wife of one of Margaret's nephews. The document consists of four pages of writing paper, folded together. Three of the pages contain Margaret's handwriting and the fourth page is blank.

The document is not dated. It is written in several colors of ink and contains interlineations, corrections and writing in the margins. The writing begins at the top of the first page with the words "Being of sound mind I, Margaret Macleod Horwitz, declare the following to be my last will and testament." The name "Margaret MacLeod Horwitz" is a superscription added to the sentence by means of a caret mark. On the next three pages are numbered bequests. The first is to David and leaves to him "the enclosed pictured articles which had belonged to his father and/or mother." No pictures were found with the document. In the margin following are the words "Also I bequeath him the large Sarouk rug he so admired."

The second bequest is to David's wife. The document leaves to her a diamond watch with diamond band. Interlineated from this bequest is "the gold and diamond pin" which had belonged to her husband's mother. The third bequest was to David's daughter and gave to her a silver dresser set and various items of jewelry. Also included was the gold and diamond pin interlineated from the bequest to David's wife.

The next seven numbered bequests leave items of jewelry to various friends and relatives.

The 11th numbered bequest states:

"To my dear nephew, Sidney Macleod Smith I leave MacTavish Farm, all its buildings and furnishings, paintings, books silver and bibelots, in memory of, and gratitude for all his help, kindnesses and devotion to my father and mother over the years. It is my hope that the property will remain in the family in perpetuity"

The 12th and last bequest states "All the remainder of my estate, after taxes is to be equally divided between my five other beloved nephews." The document then lists the names of Margaret's five other nephews.

No signature appears at the end of the document.

Margaret's estate was valued at slightly over $1 million.

A will contest was undertaken by David. The parties agreed the document in question was entirely in Margaret's handwriting; Margaret had testamentary capacity at the time the document was executed. The parties also agreed that at the time of Margaret's death the California Probate Code did not require a holographic will be dated.

David presented essentially uncontradicted evidence that Margaret was a well-educated, formal and punctilious woman who had been the executor of her husband's formal will. David also presented legal documents signed by Margaret to demonstrate she used a particular signature in signing such documents. David requested the trial court compare that signature to the signature on the purported will. Evidence was also presented Margaret was close to David and that almost all of her estate was from David's father. It was David's position that given Margaret's character she would not have intended the unsubscribed, scribbled and interlineated document found at her bedside to be her will. David believed the document was no more than an unsigned working paper executed without testamentary intent.

David further argued while the law at the time of Margaret's death did not require a date, that rule should not be applied to the subject document because Margaret lost testamentary capacity seven years before the Legislature changed the rule and it would be unfair to retroactively apply the new rule.

The trial court stated it was important, if at all possible, to give effect to Margaret's wishes. The court noted there was no question the document was in Margaret's handwriting and that her signature appeared on it. The court concluded the document was a complete disposition of her property and that Margaret was not the type of person who would have chosen to die intestate. The court noted the document began with the statement it was Margaret's last will and testament. The court believed Margaret might have

changed the will from time to time after it was first drafted but did not believe that fact was significant. The court admitted the will to probate.

II DISCUSSION

A. Testamentary Intent

Essentially David makes two closely related arguments. First, a review of the document and evidence concerning Margaret's character and habits lead to the conclusion the document was not executed with testamentary intent. Second, whatever the intent in drafting the document, it is invalid as a holographic will since it was not signed with the intent to authenticate the document as a will.

We deal first with the question of testamentary intent. As was stated in Estate of Geffene (1969) 1 Cal.App.3d 506, 512, 81 Cal.Rptr. 833:

"Before an instrument may be admitted to probate as a will, it must appear from its terms, viewed in the light of the surrounding circumstances, that it was executed with testamentary intent. [Citations.] The basic test of testamentary intent is not the testator's realization that he was making a will, but whether he intended by the particular instrument offered for probate to create a revocable disposition of his property to take effect only upon his death. [Citations.] No particular words are necessary to show testamentary intent but it must satisfactorily appear from the proffered document that the decedent intended by the very paper itself to make a disposition of his property after his death. [Citations.]"

Regardless of the language of the instrument, extrinsic evidence may be introduced to show it was not intended by the testator to be effective as a will. (Estate of Sargavak (1950) 35 Cal.2d 93, 95-96, 216 P.2d 850.)

When the trial court's interpretation of a written instrument turns upon the credibility of conflicting evidence, we are bound by the conclusion reached below. However, this is not the case when no extrinsic evidence was presented or if the evidence acted upon below was not in conflict. (Estate of Geffene, supra, 1 Cal.App.3d at pp. 511-512, 81 Cal.Rptr. 833.) In the present case while extrinsic evidence was presented, that evidence was not in conflict and the task of the trial court was to interpret the meaning of the evidence in light of the document offered as Margaret's will. Under such circumstances our task is to independently decide whether the document offered as Margaret's will was executed with testamentary intent. (Ibid.)

We first note the document on its face is described as a will. The instrument is reasonable, noneccentric and complete. Margaret begins the document with specific bequests of personal property and gives her beloved farm to a family member with the notation she hopes the property stays in the family. The document ends with a residuary clause that acts to completely distribute her property.

While the document may not reflect Margaret's usual care with important legal documents, and while it may have been changed from time to time, even with the intent perhaps at some future time to formalize the will, we do not believe this detracts from the conclusion Margaret intended the document, at any given time, to be her will. (See Estate of Crick (1964) 230 Cal.App.2d 513, 517, 41 Cal.Rptr. 120; Estate of Kuttler (1958) 160 Cal.App.2d 332, 342, 325 P.2d 624.)

Next we deal with the argument the will was not signed. At the time of Margaret's death, the validity of a holographic will was controlled by Probate Code section 53. The section stated, in pertinent part, a will which did not comply with the technical...